FedSoc Blog

According to Bloomberg News:

The U.S. Supreme Court insulated multinational corporations from at least some lawsuits over atrocities abroad, scaling back a favorite legal tool of human rights activists.

The justices threw out a suit accusing two foreign-based units of Royal Dutch Shell Plc (RDSA) of facilitating torture and execution in Nigeria. The majority said the 1789 Alien Tort Statute generally doesn’t apply to conduct beyond U.S. borders.

In the Shell case, “all the relevant conduct took place outside the United States,” Chief Justice John Roberts wrote for the court. The justices were unanimous on the outcome in the Shell case, while dividing in their reasoning.

The ruling may help a number of companies defeat similar lawsuits. Exxon Mobil Corp. (XOM), Cisco Systems Inc. (CSCO), Chiquita Brands International Inc. (CQB), Siemens AG, Daimler AG and Rio Tinto Group (RIO) are all fighting Alien Tort Statute claims.

Without specifically addressing those cases, Roberts said a company couldn’t be sued under the Alien Tort Statute simply because it had a “corporate presence” in the U.S.

Roberts pointed to the “presumption against extraterritoriality,” saying that legal principle limits the reach of the Alien Tort Statute. The court’s four Democratic appointees -- Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan -- wrote separately to say they would have reached the same result using different reasoning.

Three other justices -- Anthony Kennedy, Samuel Alito and Clarence Thomas -- said in separate opinions that the ruling was a narrow one. Kennedy said the court “is careful to leave open a number of significant questions.”

Human-rights advocates said before the Supreme Court decision that a ruling favoring Shell would undermine the ability of atrocity victims to hold their perpetrators accountable. Alleged victims have invoked the law more than 150 times in the past 20 years.

“A majority of our highest court has chosen to make it easier for big corporations complicit in human rights abuses to evade responsibility and vastly more difficult for their victims to get justice,” said Nan Aron, president of the Washington- based Alliance for Justice, in an e-mailed statement.

The suit before the high court was pressed by Nigerians who said two Shell units were complicit in torture and execution in the country’s Ogoni region from 1992 to 1995.

The justices heard arguments twice in the case, first in their 2010-11 term on contentions that the Alien Tort Statute doesn’t permit suits against corporations.

The court then expanded its review, ordering re-argument in October on a potentially more sweeping question: whether the statute applies beyond the U.S. borders.

The court’s decision to focus on that question means its ruling may apply to corporate officers as well as the companies.

The 33-word statute, enacted in 1789, was in part a reaction to an attack on a French diplomat in Philadelphia. The Alien Tort Statute then lay largely dormant for almost two centuries before being revived in the 1970s as a means of pressing human-rights lawsuits. . . .

In October 2012, the Federalist Society produced a post-argument SCOTUScast on the case.  You can listen to it here.

On Tuesday, April 9, 2013, a memorial service was held for Judge Robert H. Bork, who passed away in December 2012, at the Mayflower Hotel in Washington, D.C. Below is the program.

Welcome

• Robert H. Bork, Jr.

Speakers

• John O'Sullivan, CBE, is a journalist, author and Senior Fellow at the Hudson Institute and editor at large for National Review. He was senior policy writer and speechwriter for Prime Minister Margaret Thatcher, former executive editor of Radio Free Europe/Radio Liberty.
• George Priest is the Edward J. Phelps Professor of Law and Economics and Kauffman Distinguished Research Scholar in Law, Economics, and Entrepreneurship at Yale Law School.

Music

• Ann Schein Carlyss, a concert pianist, was raised in Washington, D.C. and has performed in Washinton's concert halls since her first recital there at the age of seven. Her teachers were Mieczyslaw Munz, Arthur Rubinstein, and Dame Myra Hess. She considers Washington to be her spiritual "home", although her life as a performer has taken her to every continent.

Rachmaninoff Prelude in D Major
Rachmaninoff Prelude in B flat minor

Speakers

• John Harrison is the James Madison Distinguished Professor of Law and Joseph C. Carter, Jr. Research Professor of Law at the University of Virginia Law School. He clerked for Judge Bork on the U.S. Court of Appeals for the District of Columbia Circuit.
• A. Raymond Randolph has served on the U.S. Court of Appeals for the District of Columbia Circuit since 1990. After clerking for the Judge Henry J. Friendly on the U.S. Court of Appeals for the Second Circuit, he served as an Assistant to the U.S. Solicitor General from 1970 to 1973 and, from 1975 to 1977, as Deputy Solicitor General.

Closing

• Mary Ellen Bork

According to the Harvard Gazette:

At Harvard Law School (HLS) on Friday, a panel of four leading legal scholars examined a single question: Is there a lack of intellectual diversity at law schools?

James Lindgren, a law professor at Northwestern University, began with numbers, citing a study in which only 13.2 percent of faculty at the country’s 100 largest law schools reported being “Republican or Republican leaning.” Of law school faculty that have donated more than $200 to a political party, 81 percent have donated to Democrats (91 percent at HLS), according to the study. “My opinion is that there is some discrimination in law school hiring,” Lindgren said.

Moderator David Barron, a Harvard Law professor, then gave the floor to HLS colleague Jack Goldsmith, who served as special counsel to the Department of Defense during the presidency of George W. Bush. Conservatives are sometimes caricatured at Harvard as people “who would turn back the clock in various ways,” Goldsmith said. And conservative views are often scorned, he said, adding, “Most of my colleagues think originalism [and other conservative legal theories] are bunk.”

Goldsmith said that many of his colleagues make questionable intellectual assumptions for their progressive-leaning arguments. “Most conversations here begin from deeply progressive premises, often unreflected” upon, said Goldsmith, who described conservative opinions as having “second-class status” at HLS.

Conservative students at HLS also feel a progressive bias, Goldsmith said. Students have described “open hostility to conservative views in classrooms” and “condescending dismissals of decisions from [Supreme Court Justice Antonin] Scalia” and other conservative justices, he said. “Intellectual intolerance is bad for our community,” Goldsmith told the audience.

Still, the tough intellectual atmosphere has helped him professionally, he said. “I think my scholarship has benefited enormously from having my premises questioned” at HLS, while “my progressive colleagues are harmed by the lack of intellectual diversity.” As for solutions, Goldsmith doesn’t believe a quota system for hiring conservative and libertarian faculty is the answer. The best solution is to find faculty who will teach with a balanced, inclusive approach.

HLS’s Mark Tushnet spoke about the difficulties in hiring conservative faculty from both the supply side and the demand side. On the supply side, he described two problems: First, “evangelicals are underrepresented because they have a general skepticism about law itself,” and second, “conservatives look more favorably upon big firm practice,” he said. On the demand side, continued Tushnet, “law schools are predominantly center-left and do center-left hiring.”

Tushnet contended that law schools in hiring mode “have a greater willingness to look to the far right than the far left,” because those on the far left are sooner viewed as “unsound” compared with those on the far right. Goldsmith pointedly disagreed: “There aren’t any views left of center that are disqualifying,” he said, “but there are views on the right that are.”

Joel Alicea [pictured above], president of the Harvard Federalist Society, co-sponsor of the event with the Milbank Tweed Student Conference Fund, elaborated on the issues raised, in a conversation with the Gazette.

“What’s lost is the opportunity for students to encounter the best arguments on all sides of a legal issue, articulated in the strongest form by those who actually hold those beliefs,” he said. Without intellectual diversity, “students are not challenged to think deeply about their own views,” so “they will never have had the opportunity to really test their own beliefs. It’s the students who hold the dominant ideology who are hurt most, not conservatives.”

You can watch videos of all of the panels here.

On March 27, the Supreme Court heard oral arguments in Windsor v. U.S., the challenge to the constitutionality of the federal Defense of Marriage Act (DOMA), signed into law by President Bill Clinton in 1996, and which bars the federal government from recognizing the validity of, or extending attendant benefits to, any marriage conferred by any of the states other than those consisting of only one man and one woman. The Court considered whether DOMA violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are recognized to be married under the laws of their state, whether the Executive Branch’s assertion that DOMA is unconstitutional deprives the Court of jurisdiction to decide this case, whether the Bipartisan Legal Advisory Group of the United States House of Representatives has standing in this case to defend DOMA. Carrie Severino of Judicial Crisis Network attended the oral arguments and then offered her analysis of the arguments, the merits, and the likely outcome of the case in a FedSoc podcast available here.

Featuring:

• Ms. Carrie Severino, Chief Counsel and Policy Director, Judicial Crisis Network
• Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

On March 26, the Supreme Court heard oral arguments in Hollingsworth v. Perry, the challenge to the constitutionality of California’s Proposition 8, which amended the California constitution to define marriage as existing only between one man and one woman. The Court considered whether the Equal Protection Clause of the Fourteenth Amendment prohibits California from defining marriage as the union of a man and a woman and whether petitioners have standing under Article III, § 2 of the Constitution in this case. Carrie Severino of Judicial Crisis Network attended the oral arguments and then offered her analysis of the arguments, the merits, and the likely outcome of the case in a podcast available here.

Featuring:

• Ms. Carrie Severino, Chief Counsel and Policy Director, Judicial Crisis Network
• Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

The Associated Press reports:

A federal judge has struck down a Missouri law exempting moral objectors from mandatory birth control coverage because it conflicts with an insurance requirement under President Barrack Obama's health care law.

The ruling by U.S. District Judge Audrey Fleissig cites a provision in the U.S. Constitution declaring that federal laws take precedence over contradictory state laws. But Fleissig emphasized that she was taking no position on the merits of the Obama administration policy, which requires insurers to cover contraception at no additional cost to women.

Missouri Attorney General Chris Koster did not say on Monday whether he would appeal the ruling, which was dated Thursday but not publicized.

The anti-abortion group Campaign Life Missouri distributed an email Monday denouncing the ruling as "a radical departure from America's tradition of religious freedom" and imploring people to contact Koster's office in support of an appeal. Some backers of Missouri's law said the court ruling could result in churches and other religious organizations having to accept insurance policies that include contraception coverage.

The Missouri law requires insurers to issue policies without contraception coverage if individuals or employers assert that the use of birth control violates their "moral, ethical or religious beliefs." The state's Republican-led Legislature overrode the veto of Democratic Gov. Jay Nixon last September to enact the law, which appeared to be the first in the nation to directly rebut the Obama administration's contraception policy.

Fleissig had issued a temporary restraining order against Missouri's law last December. The law had been challenged by insurance providers, who feared they could be caught in legal quagmire by the differing federal and state requirements.

In her ruling, Fleissig wrote that the state law "is in conflict with, and pre-empted by, existing federal law" and "could force health insurers to risk fines and penalties by choosing between compliance with state or federal law."

The judge noted that the federal law includes penalties of $100 per day per employee and an annual tax surcharge of $2,000 per employee for violations of its provisions. The state insurance department already issued orders seeking civil penalties against two insurers for not offering plans excluding contraception coverage as required by the Missouri law.

The ruling "clears up what law they have to write the policies under, and that's all we were asking," said Brent Butler, the government affairs director for the Missouri Insurance Coalition, an industry trade group that was one of the plaintiffs.

Although she struck it down, Fleissig did not issue a permanent injunction against Missouri's law because she said the state insurance department had agreed not to enforce it and to withdraw its administrative complaints against the health insurers.

Among those supporting the Missouri law was Our Lady's Inn, a St. Louis area nonprofit that provides homes and counseling for pregnant women. The organization had filed a court document saying it wanted to use the Missouri law to opt out of contraception coverage for its employees' insurance policies.

"The point of the law was to tell health insurance companies that they're supposed to honor the wishes - pro or con - of people who have religious or ethical objections to what's in the policy," said Timothy Belz, a St. Louis attorney who represented Our Lady's Inn.

Under the Obama administration policy, churches are exempt from the contraception coverage requirement, but it would extend to insurers who provide policies to religiously affiliated nonprofits such as hospitals, colleges or charities. . . .

In October 2012, the Federalist Society produced a podcast on the litigation update:

On August 1 of this year, the Department of Health and Human Services mandate went into effect. The mandate, issued under the authority of the Affordable Care Act, requires employers to provide their employees with free coverage for all FDA-approved contraceptives and sterilization methods.  While the mandate includes a “religious employer” exemption--which is essentially limited to houses of worship--many employers who do not qualify for the exemption have filed suit in courts across the nation, claiming that the mandate violates their First Amendment rights, as well as their rights under federal statutory law.  Who are these employers who say their consciences do not allow them to cover the mandated drugs?  What arguments have they raised? How have the courts ruled thus far? Hasn't the government promised to accommodate these employers? On this previously recorded conference call, Mr. Duncan discusses the legal issues at stake and provides a litigation update.

Featuring:

• Mr. Kyle Duncan, General Counsel, The Becket Fund for Religious Liberty

• Moderator: Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society

You can listen to the audio recording here.

With the recent passing of Judge Robert Bork, the Federalist Society hosted on March 15, 2013 a special D.C. Luncheon featuring Senator Michael Lee, who celebrated Judge Bork’s life and legacy, and discussed his final and just-issued book Saving Justice: Watergate, the Saturday Night Massacre, and Other Adventures of a Solicitor General.

On Inauguration Day yesterday Justice Sonia Sotomayor appeared on the Daily Show, where she was interviewed by Jon Stewart. You can watch the video as aired here.  The justice, who swore in Vice President Joseph Biden, recently published a memoir titled My Beloved World.  The Daily Show has also provided the full interview in three parts: part one, part two, and part three.

The International & National Security Law Practice Group presented this panel during the Federalist Society's 2012 National Lawyers Convention. The participants were:

--Prof. Kenneth Anderson, American University Washington College of Law
--Prof. Rosa Brooks, Georgetown University Law Center
--Prof. Julian Ku, Professor of Law and Faculty Director of International Programs, Hofstra University School of Law
--Prof. Gregory S. McNeal, Associate Professor of Law, Pepperdine University School of Law
--Moderator: Prof. John O. McGinnis, Northwestern University School of Law

The Fifth Annual Rosenkranz Debate was held on November 17, 2012, during the Federalist Society's 2012 National Lawyers Convention. The topic was RESOLVED: Natural Law Should Inform Constitutional Law. The participants were:

--Prof. Hadley P. Arkes, Edward N. Ney Professor in American Institutions, Amherst College
--Hon. Alex Kozinski, Chief Judge, U.S. Court of Appeals, Ninth Circuit
--Moderator: Hon. Thomas B. Griffith, U.S. Court of Appeals, D.C. Circuit
--Introduction: Mr. Eugene B. Meyer, President, The Federalist Society

On October 19, FedSoc's Silicon Valley Lawyers Chapter and the Hoover Institution's Uncommon Knowledge hosted Supreme Court Justice Antonin Scalia as he sat down for a wide ranging interview in which he discussed subjects including the "living constitution," Roe v. Wade, Congress' relationship to the court, and his new book Reading Law: The Interpretation of Legal Texts.

Featuring:

• Hon. Antonin Scalia, United States Supreme Court
• Host: Mr. Peter Robinson, Research Fellow and Host of Uncommon Knowledge, Hoover Institution

October 1st marks the first day of the 2012 Supreme Court Term. Thus far the Court's docket includes major cases about affirmative action, international law and the alien tort statute, national security, criminal law, and others.  Notable cases include Fisher v. University of Texas at Austin, concerning the Equal Protection Clause and a public university's use of race in undergraduate admissions; Kiobel v. Royal Dutch Petroleum, about the application of the Alien Tort Statute to human rights abuses abroad, and whether the statute covers corporations; Clapper v. Amnesty International USA, regarding the right to challenge the constitutionality of a global terrorism wiretapping program; Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, concerning the proof that investors need to pursue a securities fraud claim by class-action lawsuit; and Florida v. Harris and Florida v. Jardines, about police use of a drug-sniffing dog to search the exterior of a private residence under the Fourth Amendment, and whether a dog’s “alert” constitutes probable cause for search of a private vehicle.  The Court is also likely to add other significant cases, including potentially a case filed by proponents of California’s “Proposition 8” challenge, which now has a certiorari petition pending. In addition to these cases and others, the panelists will discuss the current composition and the future of the Court, a particularly timely topic in light of the upcoming presidential election. On September 27th, the Federalist Society held its October Term 2012 preview at the National Press Club. 

Featuring:

• Mr. Tom Goldstein, Founding Partner, Goldstein & Russell P.C.
• Prof. Nicholas Quinn Rosenkranz, Professor of Law, Georgetown University Law Center
• Ms. Carrie Severino, Chief Counsel and Policy Director, Judicial Crisis Network
• Mr. Stuart Taylor, Contributing Editor, National Journal
• Hon. Kenneth L. Wainstein, Partner, Cadwalader, Wickersham & Taft
• Moderator: Mr. Pete Williams, NBC News Justice Correspondent

On September 12, 2012, the Federalist Society, celebrated the 225th Anniversary of the Constitution with with special guest Supreme Court Justice Clarence Thomas and Yale Law Professor Akhil Amar as they explored the past, present, and future of the nation's founding document.

Featuring:

• Prof. Akhil Reed Amar, Yale Law School
• Hon. Clarence Thomas, United States Supreme Court
• Introduction: Hon. David S. Ferriero, Archivist of the United State

In celebration of the 225th anniversary of the U.S. Constitution, Justice Clarence Thomas will join Akhil Amar of Yale Law School tonight at the National Archives to discuss the Constitution’s past, present, and future.  The event, which is co-sponsored by the Federalist Society and the Constitutional Accountability Center, will be streamed live at 7:00 p.m. ET at www.booktv.org.

Listen to the audio here.

Having attended today's oral arguments in the Obamacare case, Professor Randy Barnett reported on them from the courthouse steps. What was the focus of the inquiry of the various justices? Who asked the most pointed questions? What is expected in tomorrow's oral argument focusing on the constitutionality of the individual mandate? Professor Barnett discussed these and other questions in this special Federalism & Separation of Powers Practice Group Teleforum call.

Featuring:

• Prof. Randy E. Barnett, Georgetown University Law Center and architect of the Individual Mandate Challenge
• Moderator: Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society