FedSoc Blog

Podcast: Do State Attorneys General Have a Duty to Defend State Laws?


by Publius
Posted April 08, 2014, 8:41 AM

Recently U.S. Attorney General Eric Holder, citing the Supreme Court's 5-4 decision in United States v. Windsor, urged the members of the National Association of Attorneys General to exercise their discretion to decline to defend state-level Defense of Marriage Acts (DOMA). State attorneys general of California, Pennsylvania, and Virginia, among others, have followed the Justice Department's lead in declining to defend such state laws. Colorado Attorney General John Suthers urged state attorneys general not to employ a "litigation veto" to nullify popularly enacted laws with which state attorneys general might disagree. What is the scope of a state attorney general's power to decline to execute or enforce state law on the basis that the law is or is thought to be unconstitutional and inconsistent with the oath to uphold the U.S. Constitution? What lessons, if any, may properly be drawn from the federal context and any Presidential authority to decline to enforce federal statutes that he views as unconstitutional? Do such instances of executive non-defense and non-enforcement amount to executive arrogation of legislative prerogative? Colorado Attorney General John Suthers and William & Mary Professor Neal Devins discussed these questions and engaged with the audience's comments and questions.

Listen to the podcast here.


Announcing the Launch of the Richard Epstein University


Posted February 03, 2014, 11:15 AM

According to the new "Epstein University" website:

Epstein University is a complete education in classical liberal theory by its greatest expositor, Richard Epstein. Its format is a series of audio recordings culled from videos and podcasts freely available online. They focus on the key concepts that are essential to understanding the Epsteinian approach to the social sciences.

Fans of Milton Friedman, Hayek, and the like will find that Epstein fine-tunes familiar ideas to perfection. If this is your first exposure to classical liberal ideas, expect to be challenged by the most rigorous version of arguments that are far from the mainstream.

This project is organized by Epstein fans who found each other through the Richard Epstein fan site. We are not associated with Mr. Epstein, and he would probably be embarrassed to learn that he has a fan site. Our mission is to promote Epstein's work as an authority, a kind of OED for high-end "right wing" political theory that works out the most difficult questions with unmatched precision.

Epstein speaks quickly, so pay close attention and rewind frequently. We encourage you to share your thoughts and questions by commenting on the posts, but no trolling, please. These sections are only an introduction to Richard Epstein and are by no means comprehensive. We hope that they will inspire you to explore the inexhaustible genius of the world's greatest thinker.

Here are some of Epstein's recent collaborations with the Federalist Society:

Marvin M. Brandt Revocable Trust v. United States Post-Argument SCOTUScast
SCOTUScast 1-22-14 featuring Richard Epstein
January 22, 2014


Patent Re-Reform in Congress - Podcast
Intellectual Property Practice Group Podcast
November 21, 2013
Intellectual Property, Free Markets and Competition Policy - Event Audio/Video
2013 National Lawyers Convention
November 20, 2013
Showcase Panel I: Textualism and the Bill of Rights - Event Audio/Video
2013 National Lawyers Convention
November 20, 2013

FedSoc Faculty Conference Hosts Panel on “Is IP Property or Government-Conferred Monopoly?”


by Publius
Posted January 28, 2014, 5:39 PM

On Friday January 3, 2014, the Federalist Society opened its 16th Annual Faculty Conference with a panel discussion on the question “Is IP Property or Government-Conferred Monopoly?” Randy Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, served as the moderator.

The first panelist was David S. Olson, Associate Professor of Law at Boston College Law School, who began by noting that we have property rights for very good reasons, whether utilitarian or Natural Law: the world works best with such laws. Intellectual property (IP) is something different, however. True property has the property of rivalrousness: you can’t eat an apple that someone else is eating. It is a statement about physical reality. IP, by contrast, is not rivalrous. “If I come up with a new way to plough my crops, someone else can copy that on their land at the same time,” he said.

Defenders of IP, whether regarding patent or copyright law, claim that we will get fewer inventions if inventors do not have rights to exclude others from their inventions. Likewise for authors and their writings. There is a moral component to that argument, he claimed. It is not a matter of placing a tax on other users. There is a different mindset, however, if one takes a utilitarian perspective, as opposed to an argument from inherent rightness. In the former case, there would be an optimum level of IP protection, but the reality is that people create many positive externalities they can never reclaim. Typically we have not given IP protection to fashion and to natural phenomena (for example, discovering that a tree bark has an aspirin-like property). The question should always be: do we need to assign this particular right? If not, we should stop doing so.

Irina Manta, associate professor at Hofstra Law School, spoke next. She explained that she does not ground property rights in natural rights: Supporters of natural rights argue that the government must grant property rights yet she said the government does not own the right it is supposed to give. Rather, she said she sees property rules as maximizing social welfare. She stressed, however, that rhetoric does matter. When we liken IP to property in Congress or courts, more rights tend to be accorded. This is unfortunate since it contains an inaccurate understanding of non-IP property law. For instance, the doctrine that a man’s home is his castle has been modified over the years. We all agree there is a middle ground when it comes to property rights, she claimed. Nothing is achieved by making IP law more like property law or less like it. In her conclusion, she denied the claim that IP is nonrivalrous by offering the counterexample of trademarks in status goods: the value of owing a genuine Louis Vuitton bag is diminished if knockoffs are permitted.

Following Manta was Adam Mossoff, professor at George Mason University School of Law. He said his view was that IP is in fact a kind of property right. And it is so for both conceptual and normative reasons. As a preliminary matter he explained it is important to recognize that law can protect what people possess based on what those rights refer to: new values were secured as property rights as new kinds of things of value were created over the eons. For instance, the notion that property is not land per se but the disposition to use that land to the exclusion of other people. Other examples of new values are air rights, a water well (which is built), corporate forms of property (which we take for granted), and patents and inventions. IP is thus a legitimate example of the protection of values that have been created by individuals.

The final speaker was Gregory Dolin, Co-director of the Center for Medicine and Law at the University of Baltimore School of Law. He explained that his position falls between that of Manta and Mossoff but he disagrees with both. Beginning where Manta left off, he said he agreed that nomenclature matters in a visceral sense but what we should ultimately care about are the rules.  Courts assume foxes and whales can become property and thus apply certain sets of rules. Yet property is not a thing but a relation between individuals via legal rules. Calling it government privilege or property versus calling it IP does not matter.

He said that there do exist certain moral claims if IP is property. The classic assumption is that an owner of property has obtained the ownership by his labor at some point in the chain of possession. Suppose, for instance, that someone steals someone else’s Ph.D. dissertation. We think such copying is wrong even if there was no trespassing. There is no such moral implication, however, if we view IP as a matter government-conferred monopoly.

Can Public Elementary School Require Students to Wear Shirts With Mottoes?


by Publius
Posted October 10, 2013, 8:29 AM

On Monday, Eugenve Volokh, Gary T. Schwartz Professor at UCLA School of Law, argued in front on the Ninth Circuit in Frudden v. Pilling. The case regards whether public elementary schools can require students to wear shirts with mottoes. Volokh took the position that such a requirement violates students' First Amendment rights. As Volokh has previously summarized the case:

The chief (but not only) issue is whether Wooley v. Maynard, which held that people have the First Amendment right to obscure a state motto on license plates, secures public school students’ right to obscure a school motto on the mandated school uniform shirts.

Categories: Multimedia

Video of FedSoc October 2013 Term Supreme Court Preview Panel


by Publius
Posted October 04, 2013, 3:02 PM

On October 2, 2013, the Federalist Society held an October Term 2013 Supreme Court preview panel discussion at the National Press Club in Washington, D.C. For a recap of the event, click here. You can watch a video of the event above. Participating were:

  • Mr. Michael A. Carvin, Partner, Jones Day
  • Hon. Mary Beth Buchanan, Ethics and Reputational Risk Officer, United Nations
  • Ms. Megan L. Brown, Partner, Wiley Rein LLP
  • Prof. Neal K. Katyal, Georgetown University Law Center
  • Prof. Nicholas Quinn Rosenkranz, Georgetown University Law Center
  • Moderator: Ms. Jan Crawford, CBS News Chief Legal Correspondent

Bradley Smith: The Next SCOTUS Battle in the Fight for Free Speech


by Publius
Posted September 30, 2013, 10:22 AM

Bradley Smith, chairman of the Center for Competitive Politics and former commissioner of the FEC, comments in the Wall Street Journal:

No doubt you've heard of Oprah—one doesn't even need to say her last name. She is so influential that a study by University of Maryland Profs. Craig Garthwaite and Tim Moore found that her endorsement of Barack Obama was worth more than a million votes in the 2008 Democratic presidential primaries—more than the difference between then-Sen. Obama and his main rival, Hillary Clinton.

Chances are you've never heard of Shaun McCutcheon, who hopes to have a fraction of Oprah's influence on elections. Mr. McCutcheon faces one problem: The federal government could jail him for five years if he implements his plan. So he has taken his case to court, and on Oct. 8 the Supreme Court will hear oral argument in McCutcheon v. FEC. This case could be as important to campaign-finance law as Citizens United v. FEC, which in 2010 restored the rights of corporations and unions to engage in political speech.

Mr. McCutcheon owns a company that designs and builds electrical systems for projects such as clean coal-liquefaction. His financial success has allowed the longtime Republican activist to use his money to support GOP candidates.

Under federal law, however, Mr. McCutcheon is limited to a maximum contribution of $2,600 to a candidate in any election. The ostensible reason for this limit is to prevent candidates from being "corrupted" by large campaign contributions. The law also limits him to contributing a total of $48,600 to candidates in any two-year election cycle, meaning that he can only contribute the $2,600 maximum in 18 races. With at least 60 U.S. House races and 15 Senate races expected to be competitive in 2014, Mr. McCutcheon can give the maximum contribution in fewer than one-quarter of those races.

Mr. McCutcheon is willing to live with the $2,600 limit on contributions to any one candidate. But his case presents the Supreme Court with a simple question: If his $2,600 contribution would not "corrupt" the first 18 candidates he supports, why would it "corrupt" the 19th and 20th?

The aggregate limit on contributions to candidates was enacted in 2002, as part of the McCain-Feingold campaign-finance law, but Congress left no record as to why the aggregate limit was necessary. The government now argues that without the aggregate cap donors could circumvent the law by giving money to one candidate with the understanding that the candidate would pass it to another to whom the donor has already contributed the $2,600 maximum.

That theory makes little sense. The law already treats a contribution made to one candidate or political-action committee, but earmarked to be passed on to another, as a contribution to the candidate for whom it is earmarked.

A donor might try to make unearmarked contributions, in the hope that they will be passed on to the candidate he really wants to support. But as the U.S. District Court for the District of Columbia noted in September, it is "unlikely that so many separate entities would willingly serve as conduits for a single contributor's interests." There is no evidence, before or since imposition of the aggregate limit, that donors have used such schemes to circumvent the $2,600 candidate limit. Despite the lack of evidence, the lower court upheld the law on those grounds.

The Supreme Court has long held that campaign contributions and spending are constitutionally protected speech. Despite the First Amendment's prohibition on any law "abridging the freedom of speech," the court has upheld measures limiting political speech, provided that the government "demonstrates a sufficiently important interest" and that restrictions are "closely drawn to avoid unnecessary abridgment of associational freedoms" (Buckley v. Valeo, 1976).

In Mr. McCutcheon's case, the government has not addressed either criterion. If the Supreme Court is serious in its past pronouncements that laws limiting political speech must receive "heightened scrutiny" from the judiciary, it is hard to see how the government wins. . . .

In May 2012, Smith participated in a podcast on "Applying Citizens United." You can listen to it here.

New FedSoc Video: Eugene Volokh on “Is Money Speech?”


by Publius
Posted September 11, 2013, 8:55 AM

What if the government said you could publish a newspaper, but only if you spend less than $1000. Or you could hire a lawyer to defend you in court, but only if it cost less than $1000. Why are these unconstitutional?

If Congress restricts independent spending on election-related speech, is that constitutional?

In this short video, Professor Eugene Volokh of UCLA Law School argues that such restrictions abridge the freedom  of speech. Some say “but money isn’t speech,” but Volokh responds that althought this is true, it is beside the point.  Money isn’t speech; speech is speech. But most effective speech costs money. Restricting spending of money for such speech disables speech and violates the First Amendment.

Do you agree?

We hope this and other videos and publications will help foster discussion and further exchange regarding current important issues.

High Court Puts Limit on “Right to Remain Silent”


by Publius
Posted June 18, 2013, 9:14 AM

Lyle Denniston comments at SCOTUSblog:

Because merely keeping quiet when police ask damaging questions is not claiming a right to silence, the Supreme Court ruled Monday, prosecutors may use that silence against the suspect at the trial.   If an individual is voluntarily talking to the police, he or she must claim the Fifth Amendment right of silence, or lose it; simply saying nothing won’t do, according to the ruling.

The Court had taken on the case of Salinas v. Texas to decide whether it violates the Fifth Amendment for prosecutors to use pre-arrest silence as evidence of guilt.   But the Court did not reach that issue, since it said that one must say something that invokes the Amendment’s protection, or else it does not apply.  Prosecutors’ use of the silence is then permitted, it ruled.

“A witness’s constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim,” Justices Samuel A. Alito, Jr., wrote.  The Court rejected the argument that, because suspects do not know the law, their silence should be understood as a Fifth Amendment plea.

Justice Alito’s opinion had only the support of two other members of the Court — Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy.   Justice Clarence Thomas, in a separate opinion joined by Justice Antonin Scalia, would have answered the constitutional question that the Court had agreed to hear in this case, and declare that prosecutors could have used the suspect’s silence against him at the trial even if he had specifically claimed a Fifth Amendment right.

The Alito opinion, though, did control the outcome of the case, rejecting the constitutional challenge to the murder conviction of a Houston man, Genovevo Salinas.  He had voluntarily gone to a police station with officers to talk about the murder of two brothers in 1992.  He was not under arrest, and was not in custody, so he had no right to “Miranda warnings” telling him that he had a right to silence.

He answered almost all of the officers’ questions, but simply sat silent when the officers asked him if shotgun casings found at the scene would match his gun.  He acted very nervous in response, but said nothing.  Prosecutors used the fact that he said nothing to help convince the jury that he was guilty.  He was convicted and is serving a twenty-year sentence.

The Court rejected the argument by Salinas’s attorney that, since he was not in custody at the time and had not been given warnings about his rights, that he did not have to explicitly claim the protection of the Fifth Amendment when he did not want to answer the police questions about the shotgun casings.   The Court had previously said, in a number of other contexts, that one had to invoke the right for it to take effect, but it had never done so in the setting of a voluntary encounter of an individual with officers at a police station.

The Alito opinion said that there was no formal way an individual had to use to invoke his Fifth Amendment right, and concluded that it has not been hard for courts to figure out when that right has, in fact, been invoked.

Justice Stephen G. Breyer wrote the dissenting opinion, joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.  They would have ruled that courts should examine all of the specific circumstances of an individual’s encounter with police to decide whether, in fact, that person’s silence was an attempt to claim the Fifth Amendment right. . . .

In April 2013, the Federalist Society produced a post-argument podcast on the case with Kent Scheidegger, the Legal Director of the Criminal Justice Legal Foundation. You can listen to it here.

Supreme Court Bars Retroactive Application of Sentencing Guidelines


by Publius
Posted June 11, 2013, 12:38 PM

According to the Washington Post:

A divided Supreme Court ruled Monday that tougher sentencing guidelines passed after someone commits a crime cannot be used to justify a longer sentence for the defendant.

The court ruled 5 to 4 that such a change would violate the Constitution’s prohibition against enacting laws that retroactively make an action illegal or call for greater punishment.

Even though the federal sentence guidelines are advisory, not binding, Justice Sonia Sotomayor wrote for the majority, the analysis is the same. She said the range of sentencing options contained in the guidelines “is intended to, and usually does, exert controlling influence on the sentence that the court will impose.”

In the case at hand, Marvin Peugh was accused of bank fraud and other financial crimes involving an Illinois farming business he owned with his cousin. The scheme took place in 1999 and 2000.

But Peugh was not convicted and sentenced until much later. The guidelines in place at the time of his crimes called for a sentencing range of 30 to 37 months. But when Peugh was sentenced in May 2010, the range had been toughened to 70 to 87 months.

Peugh argued that he should not be sentenced under the new regime. But a judge rejected the claim and sentenced him to 70 months. His conviction and sentence were upheld by the U.S. Court of Appeals for the 7th Circuit.

Sotomayor was joined in overturning that decision by the rest of the court’s liberals — Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan — plus Justice Anthony M. Kennedy.

Federal sentencing guidelines originally were enacted to be binding. But the court ruled in 2005 that that ran afoul of the Constitution. The remedy was to make them advisory. But Sotomayor said the guidelines still carry enormous weight.

“That a district court may ultimately sentence a given defendant outside the guidelines range does not deprive the guidelines of force as the framework for sentencing,” Sotomayor wrote.

“Indeed, the rule that an incorrect guidelines calculation” can be reason for appeal “ensures that they remain the starting point for every sentencing calculation in the federal system.”

The court rejected the government’s position that because the guidelines did not carry the legal effect of a “law,” they do not violate the ex post facto clause.

Justice Clarence Thomas, in dissent, largely agreed with the government’s view, and was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Samuel A. Alito Jr.

Along the way, Thomas apologized for a previous court decision that he wrote and that the majority on Monday in part relied on: 1995’s California Dept. of Corrections v. Morales.

“As the author of Morales, failure to apply the original meaning [of the ex post facto clause] was an error to which I succumbed,” Thomas wrote in a footnote.

“The guidelines do not constrain the discretion of district courts and, thus, have no legal effect on a defendant’s sentence,” Thomas wrote. “We have never held that government action violates the Ex Post Facto Clause when it merely influences the exercise of the sentencing judge’s discretion.”

The case is Peugh v. United States.

In February 2013, the Federalist Society produced a post-decision podcast on the case with Carissa Byrne Hessick, professor of at Sandra Day O’Connor School of Law. You can listen to it here.


Attacked on All Sides, NLRB Is in “Unprecedented” Place


by Publius
Posted June 10, 2013, 11:32 AM

According to Thomson Reuters:

Under challenge in federal courts, on Capitol Hill and even by litigants, the National Labor Relations Board faces uncertain prospects, a top board official has said.

Speaking at a conference on Friday, Acting General Counsel Lafe Solomon, the agency's top prosecutor and investigator, spoke of the ripple effect that a federal appeals court decision has had on the agency's official business.

"The NLRB is in an unprecedented place in its 78-year history," Solomon said at a conference on labor and employment law at New York University Law School. "We are being attacked judicially, politically and legislatively."

In January, the District of Columbia Circuit Court of Appeals ruled that the appointment of two board members was invalid, throwing past and future decisions by the board into doubt.

While a Senate committee in May approved President Barack Obama's nominees for all five board members, they still face uncertain prospects before the full Senate.

Senate Minority Leader Mitch McConnell has called the slate of candidates unacceptable, and Solomon noted that some senators have even criticized the very existence of the agency.

With the term of Chairman Mark Gaston Pearce expiring in August, the board would no longer have a quorum if the nominees were not approved.

"For the first time in (its) history there is a possibility of no board," Solomon said.

Meanwhile, litigants have raised the D.C. Circuit's decision in NLRB cases in every federal circuit, Solomon said. As of last Thursday, employers had also raised it in 188 unfair labor practices cases before the NLRB itself, as well as in 29 petitions regarding union elections.

Nevertheless, the board continues to conduct investigations, hold union elections and seek injunctions against possible unfair labor practices, he said.

"I don't want to leave you with the impression that post-Noel Canning the agency has ground to a halt," Solomon said, referring to the case decided by the D.C. Circuit, Noel Canning v. National Labor Relations Board.

The "vast majority" of employers are still agreeing to union elections overseen by the NLRB, and the agency is still experiencing a settlement rate exceeding 90 percent of its cases, he said.

"My firm belief is that, win, lose or draw, most employers would rather have their workplace disputes resolved by us than have them fester," he said.

Panelists on Friday discussed issues regarding the role of pay and benefits outside of the United States, as well as how pay disputes such as executive compensation are arbitrated or litigated. The conference commemorated the 75th anniversary of the Fair Labor Standards Act, the Depression-era law governing minimum wage requirements in the U.S.

In Noel Canning, the court held that two of Obama's appointments to the board were not valid because the Senate was not properly in recess when he made the appointments without Senate confirmation. The administration has asked the Supreme Court to consider an appeal.

In January 2013, the Federalist Society producted a podcast on the Noel Canning decision. Participating were:

  • Dr. John C. Eastman, Chapman University School of Law
  • Mr. Noel J. Francisco, Jones Day
  • Prof. Todd J. Zywicki, George Mason University School of Law
  • Moderator: Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society

You can listen to the podcast by clicking here.


SCOTUS Rules Police Can Collect DNA From Felony Arrests


by Publius
Posted June 03, 2013, 11:35 AM

Politico reports:

The U.S. Constitution does not prohibit states from building large DNA databases by collecting samples from everyone arrested for serious crimes, the Supreme Court ruled in a 5-4 decision Monday.

The case produced an unusual divide on the court, with liberal Justice Stephen Breyer joining the court’s Republican appointed justices who upheld the practice and conservative Justice Antonin Scalia writing a bitter dissent joined by most of the court’s liberals.

Writing for the majority, Justice Anthony Kennedy called the taking of a cheek swab from arrestees “a legitimate police booking procedure that is reasonable under the Fourth Amendment.” His opinion argued that the testing could be justified as a means of confirming the identification of suspects.

“In light of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks,” Kennedy wrote, joined by Chief Justice John Roberts, Justices Samuel Alito, Clarence Thomas and Breyer. “That same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody.”

Kennedy described DNA testing as a logical and more effective successor to the longtime practice of fingerprinting criminal suspects.

“An individual’s identity is more than just his name or Social Security number, and the government’s interest in identification goes beyond ensuring that the proper name is typed on the indictment,” Kennedy wrote. “Identity has never been considered limited to the name on the arrestee’s birth certificate. In fact, a name is of little value compared to the real interest in identification at stake when an individual is brought into custody.”

In dissent, Scalia accused the majority of a misleading decision that suggested the taking of DNA was about identifying the arrested suspect when the true purpose of such efforts is to solve crimes that are unrelated and may not even have been committed yet. He also said the majority had opened a Pandora’s box that could lead to widespread requirements to submit to DNA testing.

“Make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” Scalia said from the bench. “This will solve some extra crimes, to be sure. But so would taking your DNA whenever you fly on an airplane — surely the TSA must know the ‘identity’ of the flying public. For that matter, so would taking your children’s DNA when they start public school.”

“It may be wise, as the Court obviously believes, to make the Leviathan all-seeing, so that he may protect us all the better. But the proud men who wrote the charter of our liberties would not have been so eager to open their mouths for royal inspection,” Scalia added tartly in his dissent, which was joined by Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor.

President Barack Obama has enthusiastically endorsed the building of DNA databases and interconnecting them among state and federal agencies. . . .

In April 2013, FedSoc produced a Criminal Law & Procedure Practice Group podcast about the case.  You can listen to it here.

Is the Gay Marriage Debate Over?


by Publius
Posted May 28, 2013, 10:15 AM

David Blankenhorn, founder and president of the Institute for American Values, writes in the Los Angeles Times:

Let's be honest: The gay marriage debate is nearly over, and nothing the Supreme Court does when it delivers its opinions on the federal Defense of Marriage Act and on the fate of California's Proposition 8 is likely to change that astonishing fact.

A very few years ago, most Americans (including me) viewed the idea of gay marriage as both undesirable and wildly improbable. Today, most Americans (including me) believe that permitting gay and lesbian couples to marry is the right thing to do, a matter of simple justice.

Let us pause in wonder at the speed and moral meaning of this change. As recently as a decade ago, homosexual conduct itself was a crime in many U.S. states. That world has vanished. Gay rights of all kinds are increasingly protected. Gay marriage is legal in 12 states and counting. Gay families are a part of our social fabric. Whatever the Supreme Court decides about the two cases now before it won't be nearly as important as what has already happened in the country.

And yet these court decisions will affect the lives of millions of Americans. At stake in the DOMA case is whether the federal government can deny benefits to legally married same-sex couples that it extends to legally married opposite-sex couples. At stake in the Proposition 8 case is whether, or in what circumstances, a state can withhold marriage rights from same-sex couples.

So if you can't sponsor your spouse for a green card simply because you're both gay, the court's view of DOMA matters a lot. And if you are a gay couple living in, say, my home state of Mississippi, or in one of the other Sunbelt states in which opposition to gay rights is strong, you care very much about whether your state can prohibit same-sex marriage.

For those reasons and more, I have every hope the Supreme Court will craft decisions that will move the country in the direction it is already headed: toward marriage equality. . . .

In June 2013, the Federalist Society produced a podcast with Carrie Severino, Dean A. Reuter on DOMA in the Supreme Court.  You can listen to it here.


Supreme Court Protects Corporations From Human-Rights Suits Under Alien Tort Statute


by Publius
Posted April 17, 2013, 2:03 PM

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.

Video of Memorial Service for Judge Robert Bork


by Publius
Posted April 11, 2013, 1:59 PM

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.


  • Robert H. Bork, Jr.


  • 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.


  • 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


  • 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.


  • Mary Ellen Bork

FedSoc Hosts Panel at Harvard Law on Intellectual Diversity


by Publius
Posted April 10, 2013, 11:12 AM

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.




Originally Speaking Debate Archive

Blog Roll