FedSoc Blog

New Post-Decision SCOTUScast: Walden v. Fiore

Avatar

by SCOTUScaster
Posted April 22, 2014, 11:00 AM

On February 25, 2014, the Supreme Court issued its decision in in Walden v. Fiore. This case involved a dispute over personal jurisdiction. For a court to validly adjudicate a dispute, it must possess jurisdiction over the parties before it. Here the question was whether due process permited a federal court in Nevada to exercise personal jurisdiction over a law enforcement defendant in Atlanta, Georgia regarding an allegedly improper seizure of the plaintiffs’ gambling winnings that took place in transit at Atlanta’s airport. In addition, there was a question of whether Nevada was a proper venue to adjudicate the parties’ dispute under the terms of an applicable federal statute.

In a unanimous decision delivered by Justice Thomas, the Court held that the United States District Court for the District of Nevada lacked personal jurisdiction over the petitioner. Given the lack of jurisdiction, the Court did not reach the venue issue. The decision of the Ninth Circuit was reversed.

To discuss the case, we have Paul Stancil, who is a Professor of Law at the University of Illinois College of Law.

Click here to view this article on the source site »

Categories: SCOTUScasts

New Post-Decision SCOTUScast: Lawson v. FMR LLC

Avatar

by SCOTUScaster
Posted April 16, 2014, 8:29 AM

On March 4, 2014, the Supreme Court issued its decision in Lawson v. FMR LLC. The question in the case is whether the Sarbanes-Oxley Act’s retaliation protections for whistleblowers extend to employees of privately owned contractors who are working for public companies.

Justice Ginsburg delivered the opinion of the Court, which held that the Sarbanes-Oxley Act's whistleblower protection does extend to employees of a public company’s private contractors and subcontractors. The decision of the First Circuit was reversed and the case remanded for further proceedings. Chief Justice Roberts, Justice Breyer, and Justice Kagan joined the opinion of the Court. Justices Scalia and Thomas joined in principal part. Justice Scalia filed an opinion concurring in principal part and concurring in the judgment, which Justice Thomas joined. Justice Sotomayor filed a dissenting opinion, joined by Justices Kennedy and Alito.
To discuss the case, we have Jessie Liu, who is a partner at Jenner & Block.

Click here to view this article on the source site »

Categories: SCOTUScasts

SCOTUSBlog Analysis of McCutcheon Campaign Finance Decision

Avatar

by Publius
Posted April 02, 2014, 1:13 PM

Lyle Denniston comments at SCOTUSblog:

The Supreme Court pressed ahead on Wednesday with the majority’s constitutional view that more money flowing into politics is a good thing — even if much of it comes from rich donors.  By a five-to-four vote, the Court struck down the two-year ceilings that Congress has imposed on donations by individuals to presidential and congressional candidates, parties and some — but not all — political action groups.The main opinion delivered by Chief Justice John G. Roberts, Jr., said confidently that corruption in politics will be kept in check by caps — left intact — on how much each single donation can be.  Removing the ceilings on the total amounts that may given in each election cycle will not undermine those limits, Roberts predicted.

The decision was not as sweeping as the Court’s ruling four years ago, removing all restrictions on what corporations and labor unions can spend of their own money in federal campaigns (Citizens United v. Federal Election Commission), which has led to billions of dollars spent on politics through financing that is supposed to be independent of candidates or parties.  The new ruling leaves that option open if a donor does not want to directly support a candidate or a party committee and stay within the per-donation caps.

Even so, the practical result of the new ruling is almost sure to be that wealthy individuals favoring specific candidates or party positions will be able to spread their money around among more candidates and political groups.

Donors will get into legal trouble, the ruling emphasized, only if they demand a specific favor in policy or legislation in a direct exchange for the money they give.  That is the only kind of corruption that the First Amendment will allow the government to attack, the decision stressed.

The Chief Justice’s opinion said that other recent changes in campaign finance law will work to reduce the risks of abuse, and it offered several other ideas for new limits that it implied might be constitutional. Whether the votes are there in Congress to pass any of those suggestions is problematic.

Although the Roberts opinion spoke only for himself and three other Justices, Justice Clarence Thomas said he agreed with the result, making a majority for eliminating the two-year ceilings.  Thomas said he would have gone even further to free up even more donations in federal campaigns.  He would have overruled a 1976 decision (Buckley v. Valeo) that gives contributions less constitutional protection than spending during campaigns.  He added, though, that the Roberts opinion “continues to chip away” at the 1976 decision’s foundations.

The Roberts opinion was supported in full by Justices Samuel A. Alito, Jr., Anthony M. Kennedy, and Antonin Scalia.  Justice Stephen G. Breyer wrote for the dissenters, and orally announced the dissenters’ reasoning in a presentation that ran longer than the Chief Justice’s announcement of the ruling.  Breyer’s opinion was joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. . . .

In October 2013, the Federalist Society producted a post-argument SCOTUScast on the case with Derek Muller, Associate Professor of Law at the Pepperdine University School of Law. You can listen to it here.

Announcing the Launch of the Richard Epstein University

Avatar

by
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

New SCOTUScast: Henderson v. United States

Avatar

by SCOTUScaster
Posted August 16, 2013, 7:08 PM

On February 20, 2013, the Supreme Court announced its decision in Henderson v. United States. The question in the case is whether or not, when a criminal defendant’s sentence is plainly erroneous in light of an intervening Supreme Court decision, the “plain error” correction is prohibited under Federal Rule of Criminal Procedure 52(b) because the law was unsettled when the district court imposed the sentence and the defendant failed to object.

In 6-3 decision delivered by Justice Breyer, the Court held that, regardless of whether a legal question was settled or unsettled at the time of trial, an error is “plain” within the meaning of Rule 52(b) so long as the error was plain at the time of appellate review. The decision of the Fifth Circuit was reversed and the case was remanded for further proceedings. Chief Justice Roberts as well as Justices Kagan, Sotomayor, Ginsburg, and Kennedy joined the opinion of Court. Justice Scalia filed a dissenting opinion, which Justices Thomas and Alito joined.

To discuss the case, we have Elizabeth Papez, a partner at Winston & Strawn, LLP.

Click here to view this article on the source site »

Categories: SCOTUScasts

New SCOTUScast: Missouri v. McNeely

Avatar

by SCOTUScaster
Posted August 15, 2013, 11:56 AM

On April 17, 2013, the Supreme Court announced its decision in Missouri v. McNeely. The question in this case was whether the Fourth Amendment's “exigent circumstances” doctrine permits a law enforcement officer to take a warrantless, nonconsensual blood sample from a drunk driver because of natural dissipation of alcohol in the bloodstream over time. The Supreme Court of Missouri concluded that the exigency exception to the Fourth Amendment's warrant requirement did not apply, and ruled in favor of the defendant.

In an opinion delivered by Justice Sotomayor, the U.S. Supreme Court affirmed the state supreme court's judgment by a vote of 5-4. The natural dissipation of alcohol in the bloodstream, the Court held, does not create in every drunk driving case an exigency sufficient to justify conducting a blood test without first obtaining a warrant. Justice Sotomayor announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, in which Justices Scalia, Kennedy, Ginsburg, and Kagan joined, and an opinion with respect to Parts II–C and III in which Justices Scalia, Ginsburg, and Kagan joined. Justice Kennedy filed an opinion concurring in part. Chief Justice Roberts filed an opinion concurring in part and dissenting in part, which was joined by Justices Breyer and Alito. Justice Thomas filed a dissenting opinion.

To discuss the case we have Prerak Shah, an associate in the Dallas office of Gibson, Dunn & Crutcher.

Click here to view this article on the source site »

Categories: SCOTUScasts

Supreme Court Ruling on Taxpayer-Funded Attorneys Could Cost Delaware Millions

Avatar

by Publius
Posted August 13, 2013, 8:57 AM

The News Journal of Wilmington, Delware reports:

Because of an obscure, difficult to understand ruling from the U.S. Supreme Court in March 2012, poor defendants in Delaware now have a new right to a taxpayer-funded attorney to appeal their convictions, a change that seems poised to cause legal gridlock in state courts and cost Delaware taxpayers millions.

Until now, criminal defendants unable to pay for a private attorney were guaranteed a publicly financed lawyer for their trial and first appeal to the state Supreme Court. On limited occasions, state judges have assigned lawyers for additional post-conviction appeals, mostly for defendants facing life in prison or the death penalty.

But the state’s courts adopted a new rule in May, following the 2012 U.S. Supreme Court decision in Martinez v. Ryan, requiring that nearly all indigent inmates in Delaware get a taxpayer-funded attorney for at least one round of post-conviction appeals to argue their trial attorney was ineffective, if they ask.

“It looks like we have a problem on our hands and we are still working on how to solve it,” said Delaware Public Defender Brendan O’Neill, who expressed concern about both paying for this new right and finding enough attorneys to handle the work.

State Prosecutor Kathleen Jennings says that the state Attorney General’s Office is near its limit and to add this new responsibility to defend cases where the defendant has already been tried and convicted and failed on the first round of appeals is too much.

“We just can’t absorb this much more work,” she said, without money to hire new prosecutors.

But so far state legislators have refused to appropriate additional funds, citing frustration over the new rule.

Rep. Melanie George Smith, D-Bear, co-chair of the Joint Finance Committee, described the ruling as an unfunded mandate from Washington.

“I’m not one to second-guess the U.S. Supreme Court, but I do have a philosophical disagreement with the decision in this case,” she said, in that the court in the Martinez case ends up “telling the state how to allocate the state’s resources.”

Sen. Harris McDowell III, D-Wilmington North, the other co-chair of the JFC, saidthe ruling means a whole new layer of taxpayer-funded support for criminal defendants and seems like a “welfare” program for attorneys. . . .

The 2012 Martinez ruling did not receive much national attention, in part because the implications of the ruling were not clear and because it did not affect all states equally. Some states already have a system in place that provides a taxpayer-funded attorney for post-conviction “ineffective assistance” claims and some states have interpreted the ruling differently than Delaware.

Delaware justices only decided that the Martinez decision meant Delaware had to expand access to taxpayer-funded attorneys after a months-long review by a specially-appointed panel of judges and attorneys.

If Delaware fails to pay for this additional representation, Widener Law professor Judith Ritter said, federal courts will start overturning state cases and sending them back. . . .

In April 2012, the Federalist Society produced a SCOTUScast on the decision in the Martinez v. Ryan case. According to the podcast's summary:

The question in this case was whether the failure of a state prisoner’s attorney to raise, in state collateral review proceedings, a claim of ineffective assistance of counsel at trial bars a federal court from considering the claim on subsequent federal habeas review.

In an opinion delivered by Justice Kennedy, the Court held by a vote of 7-2 that such a “procedural default” does not bar a federal habeas court from considering a substantial claim of ineffective assistance at trial if, in the initial collateral review proceeding, there was no counsel or counsel in that proceeding was ineffective. The Court therefore reversed the lower court’s ruling to the contrary and remanded the case for further proceedings.  Justice Kennedy’s opinion for the Court was joined by the Chief Justice and Justices Ginsburg, Breyer, Alito, Sotomayor, and Kagan.  Justice Scalia filed a dissenting opinion, which was joined by Justice Thomas.

To discuss the case, we have Ward Campbell, who is the Supervising Deputy Attorney General at the California Department of Justice.

You can listen to the SCOTUScast here.

New SCOTUScast: Salinas v. Texas

Avatar

by SCOTUScaster
Posted August 02, 2013, 4:50 PM

On June 17, the Supreme Court announced its decision in Salinas v. Texas.  This case considered whether and under what circumstances a petitioner who refused to answer questions from officers before he had been arrested or read Miranda rights was protected by the Self-Incrimination Clause of the Fifth Amendment.

By a vote of 5-4 the Supreme Court affirmed the judgment of the lower court denying petitioner’s Fifth Amendment claim, but without a majority opinion. Justice Alito announced the judgment of the Court and delivered an opinion joined by Chief Justice Roberts and Justice Kennedy.  Justice Thomas filed an opinion concurring in the judgment, which was joined by Justice Scalia.  Justice Breyer filed a dissenting opinion which was joined by Justices Ginsburg, Sotomayor, and Kagan.

To discuss the case, we have Kent Scheidegger, the Legal Director of the Criminal Justice Legal Foundation.

Click here to view this article on the source site »

Categories: SCOTUScasts

New SCOTUScast: Sekhar v. United States

Avatar

by SCOTUScaster
Posted July 31, 2013, 9:42 AM

On June 26, 2013, the Supreme Court announced its decision in Sekhar v. United States. The question in this case is whether attempting to compel a person to recommend that his employer approve an investment constitutes “the obtaining of property from another” for purposes of an extortion conviction under the Hobbs Act.

In an opinion delivered by Justice Scalia, the Court held unanimously that such activity does not constitute “the obtaining of property from another” necessary for an extortion conviction under the Hobbs Act. The decision of the U.S. Court of Appeals for the Second Circuit affirming the defendant’s conviction was therefore reversed. Chief Justice Roberts as well as Justices Thomas, Ginsburg, Breyer, and Kagan joined the opinion of the Court. Justice Alito filed an opinion concurring in the judgment, which was joined by Justices Kennedy and Sotomayor.

To discuss the case, we have Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.

Categories: SCOTUScasts

New SCOTUScast: Gunn v. Minton

Avatar

by SCOTUScaster, http://www.fed-soc.org/publications/author/erin-m-hawley
Posted July 25, 2013, 6:19 PM

On February 20, 2013, the Supreme Court announced its decision in Gunn v. Minton. The question in this is case is whether federal courts have exclusive “arising under” jurisdiction over a legal malpractice case--ordinarily a state matter--where the sole substantive issue is the application of a patent law doctrine that is an essential element of the underlying legal malpractice claim.

In an opinion delivered by Chief Justice John Roberts, the Court held unanimously that the plaintiff’s malpractice case did not “arise under” federal patent law, and that federal law therefore did not deprive state courts of jurisdiction over the plaintiff’s legal malpractice case. The contrary decision of the Supreme Court of Texas was reversed and the case remanded for further proceedings.

To discuss the case, we have Erin Hawley, an associate professor at the University of Missouri School of Law.

Categories: SCOTUScasts

New SCOTUScast: United States v. Davila

Avatar

by SCOTUScaster
Posted July 18, 2013, 6:02 PM

On April 15, the Supreme Court heard oral argument in United States v. Davila.  This case considers whether judicial participation in plea negotiation, in violation of Federal Rule of Criminal Procedure 11(c)(1), automatically requires the vacating of a subsequent guilty plea--regardless of whether the violation prejudiced the defendant.

To discuss the case, we have Mark Bonner, an associate professor at Ave Maria School of Law.

Categories: SCOTUScasts

Sixth Circuit Reinstates Whirlpool Smelly-Washer Class Action Despite Supreme Court Hint

Avatar

by Publius
Posted July 18, 2013, 11:54 AM

Daniel Fisher comments for Forbes:

Rebuffing a strong hint from the U.S. Supreme Court that it needed to reconsider, the Sixth Circuit Court of Appeals affirmed a class action against Whirlpool over smelly front-loading washers.

The Supreme Court sent the case back to the Sixth Circuit in April, advising the court to reconsider whether it was really class-action material in light of its Comcast v. Behrend decision rejecting a class of cable-television customers the high court determined was too diverse to be included in a single lawsuit.The Supreme Court sent another smelly-washer case against Sears back to the Seventh Circuit in June, also citing Comcast.

Whirlpool, the manufacturer of the washers in both cases, argued there was no single cause binding all the consumers, some of whom may have been using their washers improperly, and many others of whom never complained of foul smells in the first place.

If there was a message in the so-called grant, vacate and remand order from the Supreme Court, the Sixth Circuit wasn’t buying it.  In its opinion released today, the court affirmed the class of all Ohio consumers who bought Whirpool front-loading washers, saying the trial court was presented with more than enough evidence to conclude there was a common claim that Whirpool knew the washers could develop “biofilm” because of their low water consumption and design.Whirlpool later began selling Affresh, a cleaning tablet designed to reduce the smell that documents suggested could bring the company $50 million to $195 million a year.

Whirlpool shipped some 160,000 washers to Ohio during the class period extending from 2002 to 2009.

Whirlpool argued the class was too broad since consumers bought many different models based on two separate platforms, defeating the requirement that all plaintiffs suffered similar damages. But the appeals court rejected that, saying “the common question of whether design defects cause mold growth remains across the manufacturing spectrum Whirlpool describes.” The court also rejected Whirpool’s argument that consumer laundry habits vary widely, as well as whether the washers are placed in sunny laundry rooms or dank basements.

Whirlpool’s own documents confirmed that its design engineers knew the mold problem occurred despite variations in consumer laundry habits and despite remedial efforts undertaken by consumers and service technicians to ameliorate the mold problem.

In affirming the class action, the Sixth Circuit had to tiptoe around the Supreme Court’s recent string of decisions restricting the ability of plaintiff lawyers to assemble such cases. In Wal-Mart v. Dukes, the court rejected a class consisting of more than 1 million female Wal-Mart employees, saying there was no feasible way for a court to determine in a single proceeding whether Wal-Mart discriminated against every one of them.

In Comcast, the court rejected a class consisting of all of Comcast’s customers in the Philadelphia area because there was no single economic theory that could explain the damages each of them suffered from the cable operator’s consolidation of that market. . . .

In April 2013, the Federalist Society produced a post-decision SCOTUScast on the Comcast case. It featured Kenneth K. Lee, a partner at Jenner and Block. You can listen to it here.

New SCOTUScast: Fisher v. University of Texas at Austin

Avatar

by SCOTUScaster
Posted July 16, 2013, 6:18 PM

On June 24, the Supreme Court announced its decision in Fisher v. University of Texas at Austin. This case considered whether using race as a factor in undergraduate admissions decisions is permitted by the Equal Protection Clause.

In an opinion delivered by Justice Kennedy, the Court held by a 7-1 vote that because the Fifth Circuit did not hold the university to the demanding burden of strict scrutiny articulated in the Grutter and Bakke precedents, its decision in favor of the university must be vacated and the case remanded for proper application of strict scrutiny.  Chief Justice Roberts, as well as Justices Scalia, Thomas, Breyer, Alito, and Sotomayor joined the opinion of the Court. Justices Scalia and Thomas filed concurring opinions. Justice Ginsburg filed a dissenting opinion. Justice Kagan took no part in the consideration or decision of the case.

To discuss the case, we have Gail Heriot, professor at University of San Diego School of Law and Peter Kirsanow, who is a partner at Benesch with the firm's Labor & Employment Practice Group and a member of the Diversity & Inclusion Committee.

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Click here to view this article on the source site »

Categories: SCOTUScasts

New SCOTUScast: Agency for International Development v. Alliance for Open Society International

Avatar

by SCOTUScaster
Posted July 15, 2013, 3:53 PM

On June 20, the Supreme Court announced its decision in Agency for International Development v. Alliance for Open Society International, Inc.  The question in the case was whether the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, which requires an organization to have a policy explicitly opposing prostitution and sex trafficking in order to receive federal funding to provide HIV and AIDS programs overseas, violates the First Amendment.

In an opinion delivered by Chief Justice Roberts, the Court held by a vote of 6-2 that the policy requirement violates the First Amendment because it compels as a condition of federal funding the affirmation of a belief that, by its nature, cannot be confined within the scope of the government program at issue.  Justices Kennedy, Ginsburg, Breyer, Alito, and Sotomayor joined the majority opinion.  Justice Scalia filed a dissenting opinion which was joined by Justice Thomas.  Justice Kagan took no part in the consideration or decision of the case.

To discuss the case we have Erik Jaffe, a Washington, D.C. attorney who specializes in appellate litigation.

Click here to view this article on the source site »

Categories: SCOTUScasts

New SCOTUScast: Oxford Health Plans LLC v. Sutter

Avatar

by SCOTUScaster
Posted July 11, 2013, 1:46 PM

On June 10, The Supreme Court announced its decision in Oxford Health Plans LLC v. Sutter. The question in the case was whether an arbitrator exceeds his powers under the Federal Arbitration Act in determining, by consent of the parties, whether the parties’ contract authorized class arbitration.

In a unanimous decision, the Court held that the arbitrator did not exceed his powers under the Federal Arbitration Act and affirmed the judgment of the lower courts, which had refused to vacate that arbitrator’s decision.  Justice Kagan delivered the opinion of the Court. Justice Alito filed a concurring opinion, which Justice Thomas joined.

To discuss the case, we have Peter “Bo” Rutledge, the Herman E. Talmadge Chair of Law at the University of Georgia School of Law.

Click here to view this article on the source site »

Categories: SCOTUScasts

Search

Categories

Archives

Originally Speaking Debate Archive

Blog Roll