FedSoc Blog

At the Weekly Standard, Adam J. White responds to Jeffrey Toobin's much-discussed account of Citizens United v. FEC:

In this week's New Yorker, Jeffrey Toobin criticizes the Supreme Court's handling of Citizens United v. FEC, which affirmed a corporation's First Amendment right to spend money on independent speech on political issues, even when that speech criticizes candidates for office.

According to Toobin's account—styled as a behind the scenes exposé—Chief Justice John Roberts orchestrated a win for Republican political fortunes in Citizens United, by hijacking a humdrum campaign finance case and turning it into a radical return to the Gilded Age. Toobin asserts that Roberts went so far as to go beyond the narrow "statutory" arguments offered by the corporation's own counsel, creating a First Amendment fight that even the corporation had wanted to avoid.

The article already has attracted much attention. Chief Justice Roberts's critics love it, of course, as does the larger chorus of critics opposed to corporate political speech. (The Atlantic calls Toobin's piece an "epic dissection.")

But beyond Toobin's base, his analysis is attracting skeptical criticism. SCOTUSblog's Tom Goldstein (no right-winger, for certain) and NRO's Ed Whelan already have poured cold water on Toobin, in terms of both his specific details and his broader narrative.

Whelan and Goldstein will be followed by others; Toobin practically demands this level of scrutiny, by front-loading his story with easily disprovable mischaracterizations of the case. Even a cursory review of the case's briefs, and contemporary news coverage, disproves Toobin's thesis that Citizens United was originally a mundane case, until Chief Justice Roberts twisted it to reach radical, partisan ends. . . .

Toobin knows all of this, of course, because he made the very same points, on national television. The morning of oral argument, he appeared on CNN to discuss the case (transcript here; video here.) . . .

For some of the Federalist Society's previous coverage of the case, see William R. Maurer's Engage article "Illuminating Citizens United: What the Decision Really Did."  You can also listen to a post-decision SCOTUScast featuring Edward B. Foley, Erik S. Jaffe, and Bradley A. Smith.

In an effort to increase dialogue about state court jurisprudence, the Federalist Society presents the Spring 2012 State Court Docket Watch. This newsletter is one component of the State Courts Project, presenting original research on state court jurisprudence and illustrating new trends and ground-breaking decisions in the state courts. This edition contains updates on important state court decisions in Wisconsin, Arkansas, Pennsylvania, Montana, Georgia, and California.

• Wisconsin Supreme Court Rules Plaintiffs Entitled to Receive "Phantom Damages" by Andrew C. Cook
• Arkansas Supreme Court Clarifies Standard for Awarding Punitive Damages by William S.W. Chang
• Pennsylvania Supreme Court Vacates Trial Court's Denial of a Minor's Application to Obtain an Abortion by Steven J. Willis & Jordan E. Pratt
• Montana Takes on Citizens United by Edward Greim & Justin Whitworth
• Georgia Supreme Court Strikes Down Ban on Assisted Suicide Advertisements by Jack Park
• California Supreme Court Upholds Law Dissolving Redevelopment Agencies by Angela Kopolovich
• California: Traditional Marriage Proponents Have Standing When Public Officials Refuse to Defend It by Jonathan Berry

The Washington Post reports that the recent spike in federal corporate prosecutions under the Foreign Corrupt Practices Act, which broadly prohibits corporations from engaging in corrupt deals abroad, is gaining attention and provoking controversy. Obama Administration officials praise the uncovering and punishing of bribes and other shady transactions among hundreds of companies, while corporations counter that the law is vague and leaves them uncertain about what conduct is covered.

In April, the Federalist Society published a paper by Michael B. Mukasey and James C. Dunlop in its journal Engage examining some concerns with the Department of Justice's enforcement of the law and possible solutions. The article also contains links to related resources on the topic.

The latest edition of Engage, the journal of the Federalist Society's Practice Groups, features an article by Todd J. Zywicki and Nick Tuszynski titled "The Economics and Regulation of Bank Overdraft Protection."  Here is the summary:

This article explores the economics of overdraft usage by consumers and banks to understand the economic logic of the product. It then examines the recent regulatory initiatives by the Federal Reserve, FDIC, and OCC governing overdraft protection issued under the rubric of safety and soundness protection as well as purported consumer protection rationales that might prompt regulatory action by the CFPB. The case for regulation in this area under traditional safety and soundness is exceedingly weak, and the evidence of harm that would justify action under a consumer protection rationale, such as evidence of a lack of consumer understanding of the product’s terms or prices, is nearly nonexistent.

There is no reason to believe that this regulatory-induced equilibrium outcome would be economically superior to that chosen voluntarily in a competitive market, especially once these other offsetting price and quality adjustments occur.

The latest edition of Engage, the Federalist Society's practice journal, contains an article by Michael James Barton and Brandon Simmons titled "Does the Takings Clause Have an Expiration Date?"  Here is the overview:

In the last Term, the United States Supreme Court declined to review two property rights cases: Guggenheim v. City of Goleta, from the United States Court of Appeals for the Ninth Circuit, and CRV Enterprises v. United States, from the United States Court of Appeals for the Federal Circuit. Some observers expected the Court to grant the petitions for certiorari for these cases because both appellate decisions appeared to depart from the Court’s opinion in Palazzolo v. Rhode Island, which held that a claim brought under the Takings Clause of the Fifth Amendment could not be dismissed for lack of standing merely because the property owner had purchased the property after it became subject to the regulation effecting the alleged taking. Observers may have had additional hope that the Court would grant certiorari in Guggenheim and CRV Enterprises because of the circuits that decided the two cases: the Federal Circuit and Ninth Circuit have been described as having the worst and second-worst reversal rates, respectively, among the federal courts of appeal. Instead, the Court denied both petitions for certiorari, thus leaving unanswered the question: does the Takings Clause have an expiration date?

"At the request of President William Powers Jr., [the University of Texas] has chosen a private legal team with noted experience defending affirmative action to represent the University in Fisher v. University of Texas at Austin," the Daily Texan reports:

UT has selected lawyers from the profitable Washington D.C. law firm Latham & Watkins instead of state Attorney General Greg Abbott and his lawyers, who hold the responsibility of representing the University and have defended UT’s position at the district court level through the 5th U.S. Circuit Court of Appeals.

Fisher v. University of Texas was filed in 2008, when two UT students were denied admission. The two contended that the University’s admissions policies, which take race into consideration when not automatically admitted as the top percentile, violated the plaintiff’s right to equal protection of the laws under the 14th Amendment. Rachel Michalewicz has since withdrawn from the suit and Abigail Fisher, now a senior at Lousiana State University, is the only remaining plaintiff.

In a March 29 letter to the state Attorney General’s office requesting the use of outside counsel, Powers stated that the University was at “critical juncture for briefing and argument before the Supreme Court.” Powers also mentioned that such counsel would possess significant experience in higher education and the Supreme Court.

The private legal team includes attorneys Maureen Mahoney and Scott Ballenger, who both successfully defended University of Michigan’s affirmative action program in the landmark 2003 Supreme Court decision Grutter v. Bollinger.

Former U.S. solicitor general Greg Garre, who represented the federal government before the Supreme Court from 2008 to 2009, heads the legal team.

For more on the case, see Joshua P. Thompson's Engage article "Fisher v. University of Texas at Austin: Could the Supreme Court Revisit Its Decision in Grutter?"

The Washington Post reports on a case regarding crack cocaine dealers caught in a mandatory minimum sentencing squeeze:

It was in a rare burst of bipartisanship that Congress in 2010 passed the Fair Sentencing Act, which attempted to close the sentencing gap between those convicted of crack cocaine offenses, who tend to be black, and those with powdered cocaine offenses, who tend to be white.

But Congress left a key bit of the legislation unexplained: whether the reduced sentences for crack should apply to those who committed their crimes before the law took effect but who were not sentenced until afterward.

An hour-long argument at the Supreme Court on Tuesday did not seem to produce a definitive answer.

Lawmakers intended for the new sentencing structure to take effect immediately, said Stephen B. Eberhardt, a lawyer arguing for two Illinois men who did not receive the benefits of the measure even though they were sentenced after President Obama signed it in August 2010.

“Why would Congress want district courts to continue to impose sentences that were universally viewed as unfair and racially discriminatory?” he asked.

But lower courts have disagreed on the question, citing an 1871 law that says when Congress means for a change to apply retroactively, it must “expressly provide” for that.

In the case of Eberhardt’s clients, Corey A. Hill and Edward Dorsey Sr., the U.S. Court of Appeals for the 7th Circuit said the 1871 measure prevented it from reading the sentencing act as the men would like. The panel of judges in Dorsey’s case called the new law the “Not Quite as Fair as It Could Be Sentencing Act of 2010.”

Chief Justice John G. Roberts Jr. told Eberhardt that the court must operate under the “proposition that Congress, when it enacts legislation, knows the law.”

And complicating the issue for the court is a reversal from the Obama administration. When the law was passed, the administration’s prosecutors told judges that the reduced sentences should apply only to those who committed their offenses after the legislation was enacted.

In 2009, FedSoc's Civil Rights Practice Group published a white paper by Christopher Byrnes on "Proposals to Eliminate Sentencing Disparities between Crack and Powder Cocaine Offenses," which you can read here.

The Washington Post has the story:

A senior Pentagon official on Wednesday authorized a new trial for Khalid Sheik Mohammed and four others accused of orchestrating the Sept. 11, 2001, attacks, a step that restarts the most momentous terrorism case likely to be held at Guantanamo Bay, Cuba.

The suspects were first charged in a military commission in 2008, but the case was suspended when the Obama administration came into office and later moved to have them tried in federal court in New York.

That effort collapsed in the face of congressional and local opposition. In April 2011, Attorney General Eric H. Holder Jr. announced that he was reluctantly sending the case back to the military.

Military charges against the five men were re-sworn in June and, on Wednesday, Ret. Vice Adm. Bruce MacDonald, the official who oversees commissions and is known as the Convening Authority, sent the case for trial after reviewing and approving those charges.

The men face multiple charges, including murder in violation of the law of war, attacking civilians, attacking civilian objects, hijacking aircraft and terrorism. If convicted, they could face the death penalty.

For a Federalist Society online debate from 2010 on "The Civilian Trial of Khalid Sheikh Mohammed," click here.  On April 20, FedSoc's Syracuse Student Chapter will be hosting Glenn M. Sulmasy, professor of law at the U.S. Coast Guard Academy, for a talk on "Guantanamo Bay and the Trial of Khalid Sheikh Mohammed: A National Security Perspective"

The latest issue of Engage, the journal of the Federalist Society Practice Groups, features "The Philosopher in Action: A Tribute to the Honorable Edwin Meese III" by William J. Haun. To quote the introduction:

In December 2011, former U.S. Attorney General Edwin Meese celebrated his 80th birthday. While his accomplishments are hardly unknown to the Federalist Society, Mr. Meese’s work in the Reagan Administration provides more than merely a list of accolades relegated to history. Through several interviews with Mr. Meese’s colleagues in the Reagan Administration, and presently at the Heritage Foundation’s Center for Legal and Judicial Studies, one finds that his achievements reveal a commitment to the realization of principles that transcend the politics of any period. Rather than simply concern himself with instant political advantage, Mr. Meese embodied Edmund Burke’s characterization of a politician: a “philosopher in action,” committed to taking rarefied intellectual concepts and transforming mainstream politics by implementing those ideas through government institutions. Interviews with Mr. Meese, Justice Samuel Alito, Judge Douglas Ginsburg, Judge Loren Smith, the Honorable T. Kenneth Cribb, Jr., Todd Gaziano, and Thomas Jipping reveal how the former U.S. Attorney General found a legal profession with little room for conservative analysis, and used the confluence of an inclined boss (Ronald Reagan) and Meese’s own personal commitment to conservatism to create a political movement that will outlast them both. Meese’s congenial leadership continues to facilitate new avenues of substantive growth for the conservative legal movement, including combating the growth of federal criminal law, and limits on congressional power. For these, and his many other achievements detailed herein, Americans owe him their thanks through analyzing his experiences in public life. This tribute strives to do just that..

In pair of 5-4 decisions yesteday, the Supreme Court vastly expanded judicial oversight of the criminal justice system.  The Washington Post reports:

A divided Supreme Court ruled for the first time Wednesday that the guarantee of effective legal representation applies to plea bargain agreements, significantly expanding the constitutional rights of defendants as they move through the criminal justice system.

In a pair of cases decided by 5 to 4 votes, the court opened a new avenue for defendants to challenge their sentences on grounds that their attorneys gave them faulty advice, lawyers on both sides of the issue said. The vast majority of criminal cases end with a guilty plea rather than a trial, and the ruling could affect thousands of cases.

“The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities . . . that must be met to render the adequate assistance of counsel that the Sixth Amendment requires,” Justice Anthony M. Kennedy wrote. He was joined by the court’s liberal justices, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

That is the case, the majority said, even if the defendant is unquestionably guilty or has received a fair trial after turning down a plea bargain.

Since more than nine in 10 cases involve a plea rather than trial, the decision will mean greater constitutional scrutiny of the negotiations central to almost every prosecution.

“It seems to me the court has created a new body of constitutional law,” said Connecticut Assistant State’s Attorney Michael J. Proto, who wrote a brief for 27 states urging the court not to extend the constitutional guarantee to plea bargains. “There are a lot of unanswered questions, and it is going to spawn a lot of litigation.” . . .

Scalia called the rulings “absurd” and said the majority had twisted the constitutional right to ensure defendants get a fair trial into one in which they have a chance “to escape a fair trial and get less punishment than they deserve.”

He added in a written dissent, “Today, however, the Supreme Court of the United States elevates plea bargaining from a necessary evil to a constitutional entitlement.”

The court’s conservatives — Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. — voted with Scalia.

For some of the Federalist Society's previous coverage of the issue of plea bargaining, see Carter K.D. Guice's white paper "Federal Plea Agreements: The Engine That Drives the Prosecution of Increasingly Complex Crimes."

The Federalist Society's State Courts Project announces the publication of an important white paper by Chris W. Bonneau, associate professor of political science at the University of Pittsburgh.  The article's subject is "A Survey of Empirical Evidence Concerning Judicial Elections."  Professor Bonneau summarizes his paper as follows:

The election of state judges is a controversial topic. Consider, for example, this quote from a paper by Adam Skaggs et al.: “The story of the 2009-10 elections, and their aftermath in state legislatures in 2011, reveals a coalescing national campaign that seeks to intimidate America’s state judges into becoming accountable to money and ideologies instead of the constitution and the law.” Legal scholars, legal groups, and advocacy groups interested in reforming judicial selection have engaged in a coordinated effort over the past decade to try to end the popular election of judges. These efforts have been largely unsuccessful in recent years, with only two states modifying their method of selection and no states ending their method of popular election of judges. But legislation to alter the method of selection continues to be discussed in several states, and it is expected to continue to be an issue in many states.

In this paper, I evaluate the arguments made by opponents of judicial elections. Focusing primarily on state supreme court elections (since that is the level of court where most studies have been conducted), though also discussing intermediate appellate courts and trial courts where appropriate, I evaluate the arguments of judicial reform advocates in light of empirical evidence. This paper presents a synthesis of the existing literature in this area, integrating the disparate findings by scholars into a single publication.

The EPA is catching some criticism after the House Committee on Oversight and Government Reform received information that the Executive Office of the President played a "direct and substantial" role in shaping regulations on motor vehicle emissions and gaining support for the rules from the industry. Rep. Darrell Issa, Chairman of the Committee, is now asking for an explanation of earlier suggestions that the EOP was not significantly involved in creating the standards.

For more on this topic, click here to read a recent article from the Federalist Society's journal Engage on whether the Obama Administration followed congressional intent in its development of fuel economy/greenhouse gas emission standards.

The New York Times recently ran an article discussing what some see as the Department of Justice's overly aggressive enforcement of Foreign Corrupt Practices Act:

At least 78 corporations are under investigation for possible violations of the Foreign Corrupt Practices Act, a 35-year-old law that bans American companies from paying bribes to government officials abroad. Among those companies are such well-known names as Alcoa, Avon, Goldman Sachs, Hewlett-Packard, Pfizer and Wal-Mart Stores, although none of these companies have been charged. . . .

Until recently, federal prosecutors had won settlements in nearly every battle involving charges of foreign bribery by multinational corporations and their executives. But in late February . . . the Justice Department had an embarrassing setback: it abruptly withdrew the biggest case ever brought against individuals under the Foreign Corrupt Practices Act.

It was an extraordinary turn of events. The F.B.I. had recorded 800 hours of video and audio as part of a sting operation involving supposed arms contracts in Africa. Twenty-two executives had been arrested.

Then the whole case fell apart. In a withering appraisal, the federal judge in the case, Richard J. Leon, called the government’s effort “a long and sad chapter in the annals of white-collar criminal enforcement.” Its approach to the law, Judge Leon said, had been “very, very aggressive.”

The development opened the door for critics who assert that federal authorities have overstepped in trying to fight corruption overseas. They say that the crackdown, which began in earnest three years ago, has made it harder for companies to win legitimate business and that it has needlessly instilled fear among executives. Many companies would rather make any charges brought under the act go away with a quick settlement than try to fight them in court.

For some of the Federalist Society's previous coverage of the more general issue of the overcriminalization of business conduct, see the following white papers: 

• Vicarious Criminal Liability by Elizabeth K. Bingold & Michael H. Huneke
• The Explosion of the Criminal Law and its Cost to Individuals, Economic Opportunity, and Society by William R. Maurer & David Malmstrom

Volume 12, Issue 3 of Engage: The Journal of the Federalist Society Practice Groups is now available online.  Engage provides original scholarship on current, important legal and policy issues.

Full issue here (links to individual articles follow).

ADMINISTRATIVE LAW & REGULATION

• Goodbye Tax Exceptionalism by Kristin E. Hickman
• Thinking About the "Practically Unthinkable": Energy Infrastructure and the Threat of Low-Probability, High-Impact Events by Adam J. White

CIVIL RIGHTS

• Affirmative Action for Men? Strange Silences and Strange Bedfellows in the Public Debate over Discrimination Against Women in College Admissions by Gail Heriot & Alison Somin

CRIMINAL LAW & PROCEDURE

• A Comprehensive Strategy Targeting Recidivist Criminals with Continuous Real-Time GPS Monitoring: Is Reverse Engineering Crime Control Possible? by Peter M. Thomson
• Honest Services Fraud After Skilling v. United States by Steven Wisotsky  

ENVIRONMENTAL LAW & PROPERTY RIGHTS

•  EPA Regulation of Fuel Economy: Congressional Intent or Climate Coup? by Marlo Lewis   

FEDERALISM & SEPARATION OF POWERS

• A Return to "the Heady Days"? The Supreme Court Addresses Whether the Bivens Doctrine Should Extend to Employees of Government Contractors in Minneci v. Pollard by Robert T. Numbers & Lisa L. Dixon

FINANCIAL SERVICES & E-COMMERCE 

• An Overview and Analysis of the Consumer Financial Protection Bureau by Sarah Riddell  

FREE SPEECH & ELECTION LAW

•  Illuminating Citizens United: What the Decision Really Did by William R. Maurer

INTELLECTUAL PROPERTY

• Hot News: The "Hot-News" Doctrine Is Hot Again! Or Is It? by David L. Applegate & Ryan Schermerhorn

INTERNATIONAL & NATIONAL SECURITY LAW

• Multinational Businesses and the Matrix of Human Rights Governance Networks by James P. Kelly, III

LABOR & EMPLOYMENT LAW

• The States and the NLRB: A Study in Comparative Sovereignty by Thomas M. Christina
• Two Guiding Trends in Contemporary Labor and Employment Law: Technology and Fairness by Daniel Morton-Bentley

LITIGATION

• Business Cases and the Roberts Supreme Court by Martin J. Newhouse
• Florida Constitutional Challenge to Obamacare: It All Comes Down to Broccoli by Karen R. Harned
• How to Think About Errors, Costs, and Their Allocation by Ronald J. Allen
• Twombly in Context: Or Why Federal Rule of Civil Procedure 4(b) Is Unconstitutional by E. Donald Elliott
• A Modest Proposal for Human Limitations on Cyberdiscovery by Richard Esenberg
• Pleading, Discovery, and the Federal Rules: Exploring the Foundations of Modern Procedure by Martin H. Redish

RELIGIOUS LIBERTIES

• Perry v. Schwarzenegger: Is Traditional Marriage Unconstitutional? by George W. Dent, Jr.
• Perry, Same-Sex Marriage, and Federal Constitutional Guarantees by Mark Strasser
• Does Neutrality Equal Secularism? The European Court of Human Rights Decides Lautsi v. Italy by William L. Saunders

BOOK REVIEWS

• Rebuilding the Ark: New Perspectives on Endangered Species Act Reform, Edited by Jonathan H. Adler Reviewed by James S. Burling 

FedSoc just released two new articles from the current issue Engage.

In "Affirmative Action for Men? Strange Silences and Strange Bedfellows in the Public Debate over Discrimination Against Women in College Admissions," Gail Heriot and Alison Somin examine reports that discrimination against women on the basis of sex in college admissions is increasingly common and explore the seeming lack of attention the issue has received to date.

In "The States and the NLRB: A Study in Comparative Sovereignty," Thomas M. Christina discusses National Labor Relations Board v. Arizona, a case pending in Arizona district court. He says the arguments made by the NLRB in that case reflect a novel conception of federal-state relations and separation of powers issues.

Click here to see all the articles released so far from the current issue.