FedSoc Blog

On Monday, May 14, FedSoc's Administrative Law & Regulation Practice Group will be hosting a teleforum on Benefit-Cost Analysis (BCA) has been embraced by every President since Richard Nixon as a general purpose tool for evaluating the merits of administrative decisions, even while it has been assigned a subordinate role – or no role at all – in the statutory frameworks for making those decisions.  One consequence is that we have a voluminous record of BCA performance in the executive branch, but only a handful of cases in which it has played an important role in judicial review of rules.  Now, amid widespread claims that federal regulation is contributing to America’s continuing economic troubles, BCA is getting more attention.  As practiced, does it give an accurate picture of the economic consequences of regulatory actions?  Should we rely on it or require it, more than we do, to guide administrative discretion?  Our two experts will talk about the state of the art and current BCA controversies in energy and environmental regulation, and in financial regulation.

Featuring:

• Dr. Sharon Brown-Hruska, National Economic Research Associates, Inc.
• Mr. Brian Mannix, Buckland Mill Associates

Agenda:

Call begins at 12:00 noon Eastern Time.

Registration details:

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Listen to the audio here.

Last year, using a drone missile strike, the U.S. killed Anwar al-Awlaki. Questions were raised about the legal and constititional authority to target a U.S. citizen abroad. In recent remarks delivered by Attorney General Eric Holder, the administration offered its most detailed legal defense to date. On April 24, 20120, our experts discussed this legal rationale, and the future of targeting U.S. citizens.  Participating in the teleforum were:

• Prof. Michael W. Lewis, Ohio Northern University Pettit College of Law
• Prof. Stephen I. Vladeck, American University Washington College of Law
• Moderator: Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society

You can listen to the International & National Security Law Practice Group podcast here.

This week, the U.S. Supreme Court will hold oral arguments in the much talked about immigration law case, Arizona v. United States.  At issue is the constitutionality of Arizona's statute, S.B. 1070.  Does the statute cross the line into territory that has been pre-empted by federal law?  Or, as the law's proponents argue, is the statute a proper exercise of the state's police power?  After providing their analysis of the case, our experts will take questions from callers.  The call will feature Prof. John C. Eastman of Chapman University School of Law and Margaret D. Stock of Lane Powell PC.

Details:

Start : Friday, April 27, 2012 1:00 PM

End   : Friday, April 27, 2012 2:00 PM

Teleforum calls are open to all dues-paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Tomorrow, April 17, at 1 p.m. ET, FedSoc's Civil Rights Practice Group will be holding a teleforum on a new Supreme Court affirmative action case.  Fisher v. University of Texas comes before the Court just as an unprecedented number of scholars have published work directly or indirectly calling into question some of the basic assumptions of affirmative action policies. Is the Supreme Court poised to make more fundamental changes to affirmative action in higher education than it did in either Bakke (1978) or Grutter and Gratz (2003)? Does Fisher have the markings of a landmark U.S. Supreme Court case?  Professor Richard Sander of UCLA will give an overview of this research and discuss its implications for Fisher.

Please note that the teleforum is open only to dues-paying FedSoc members.  You can join the Federalist Society here.

Listen to the audio here.

The decennial census has again produced the decennial redistricting litigation--not least in Texas, whose attempts to draw districts for the 2012 elections have engulfed two three-judge district courts, the Department of Justice, and the Supreme Court. The Texas litigation has been complicated by what some see as the conflicting demands of Sections 2 and 5 of the Voting Rights Act and the Fourteenth and Fifteenth Amendments to the Constitution. In Perry v. Perez, the Supreme Court vacated the interim maps a lower court drew and gave that court instructions on how navigate the legal tangle. That may have expedited the resolution of Texas's election conundrum but by no means resolved the broader issues involved.

In this recorded Federalist Society Teleforum, Justin Levitt, Ilya Shapiro, and Dean A. Reuter discuss Perry v. Perez, the Voting Rights Act, and other developments in election regulation.

The UPI features an extensive report on the reactions to the Supreme Court's decision in Sackett, et al., v. EPA, et al., which FedSocBlog noted at the time:

A unanimous U.S. Supreme Court decision last month may affect millions of Americans while providing red meat for politicians running for everything from president to county assessor -- though the ruling may have become somewhat lost for the moment amid all the hoopla surrounding the challenge to healthcare reform.

The decision came in a David versus Goliath setting that tends to capture the imagination of those who consider the Environmental Protection Agency and its rules and regulations an Orwellian monster.

Specifically, the justices ruled homeowners -- and businesses -- may sue immediately when they think the Environmental Protection Agency has treated them unfairly. . . .

News stories about the ruling pretty much struck the David-Goliath theme.

The Wall Street Journal said the high court "curbed the government's power to enforce the Clean Water Act," adding environmental groups "had warned that siding with the Sacketts would undermine the government's ability to respond rapidly to water-quality threats."

The Journal quoted Pacific Legal Foundation lawyer Damien Schiff, who argued the Sacketts' case before the Supreme Court. Schiff said the decision meant that the EPA "can't repeal the Sacketts' fundamental right to their day in court."

The Los Angeles Times said the ruling "strengthened the rights of property owners who are confronted by federal environmental regulators, ruling ... they are entitled to a hearing to challenge the government's threats to fine them for building on their own land."

Under the headline "'Little guy' wins high court fight over property rights," CNN.com called the ruling "an important property rights defeat for the Obama administration."

Lyle Denniston, the dean emeritus of the court's press corps, observed the ruling "emerged at a time when the EPA is under heavy political protest, among Republicans in Congress and conservative voters, who regard the EPA as an example of government grown too large with too much power to intrude into individuals' private lives."

A couple of days before the decision was handed down, Republican presidential front-runner Mitt Romney tried to associate himself with the little guys in the case.

In remarks at the University of Chicago, Romney "offered a vision of what he called 'economic freedom,' arguing for less regulation and less government intervention, and assailed the Obama administration, arguing that its 'assault on freedom could damage our economy and the well-being of American families for decades to come,'" The New York Times reported.

"This administration's regulations are even invading the freedom of everyday Americans," Romney said before talking about the Sacketts."

An unelected government bureaucrat robbed them of their freedom," Romney said of the couple. "They were given no recourse, no remedy. They could do what the EPA wanted, or they could risk millions of dollars in fines."

On February 23, 2012, FedSoc's Environmental Law & Property Rights Practice Group hosted a teleforum on the Sackett case.  It featured the Pacific Legal Foudnation's Damien Schiff, counsel for the petitioners, and was moderated by Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society.

To listen to the podcast of the teleforum, click here.

Listen to the audio here.

Having attended the second day of oral arguments in the Obamacare case, Professor Randy Barnett reported on them in this special Federalism & Separation of Powers Practice Group Teleforum call.  According to Professor Barnett, four of the justices were uniformly critical of the government's argument, and he was happy to see that they "used all of the arguments we've been making in our briefs since the very beginning."  By contrast, four other justices seemed skeptical of the case against the Affordable Care Act.  This divided court, he explained, was good news since it shows that this is not an easy or frivolous case, as some defenders of the Act have been claiming.  Professor Barnett also noted that Justice Kennedy made two significant points early to the government: 1) since the mandate is a major expansion of the government's powers, doesn't the government bear a substantial burden in justifying that expansion, and 2) if the power to mandate the individual purchase of insurance is upheld, it would change the fundamental relationship between citizens and their government.

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

A unanimous Supreme Court ruled today that landowners may take the Environmental Protection Agency to court as soon as they receive an EPA order to which they object.  SCOTUSblog summarizes the decision:

Making clear that the courts remain open for citizens who believe they are being “strong-armed” by the government, the Supreme Court on Wednesday gave property-owners a right to sue the U.S. Environmental Agency to make an immediate challenge to an EPA order to stop a development that the agency says threaten the nation’s waters.  Faced with such an order, the targets of the EPA need not wait until the agency chooses to sue them to enforce the order; they have a right, under the Administrative Procedure Act, to sue as soon as they receive an order to which they object, according to the unanimous decision.  More broadly, the ruling enhances citizens’ right generally to pick the time to mount a court challenge to government orders — provided that those orders are in a final form.

The decision, written by Justice Antonin Scalia, opens the federal courthouse door to an Idaho couple who own a .63-acre parcel of property close to Priest Lake, and plan to build a house on it.   EPA considered their property to be a “wetland,” and told them to stop the development, and restore the property to its former state — or face fines that the government said could reach $75,000 a day.  The EPA acted under the Clean Water Act, and it insisted — with the approval of lower courts — that the couple could not sue to challenge the order and had to wait for court review at the option of EPA.   That was the result the Court overturned in Sackett, et al., v. EPA, et al. (docket 10-1062).

On February 23, 2012, FedSoc's Environmental Law & Property Rights Practice Group hosted a teleforum on the Sackett case.  It featured the Pacific Legal Foudnation's Damien Schiff, counsel for the petitioners, and was moderated by Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society.

To listen to the podcast of the teleforum, click here.

Blogging for The New York Times, Professor Stanley Fish details what he sees as serious problems plaguing law schools:

Uneasiness about the state of legal education has been around for some time, but in the wake of the financial meltdown of 2008, uneasiness ripened into a conviction that something was terribly wrong as law school applications declined, thousands of lawyers lost their jobs, employers complained that law school graduates had not been trained to practice law, and law school graduates complained that they had been led into debt by false promises of employment and high salaries. And while all this was happening, law schools continued to raise tuition, take in more and more students, and construct elaborate new facilities.

That at least is the story told in a book to be published later this year, “Failing Law Schools,” by Brian Tamanaha. . . . Tamanaha faults the American Bar Association for instituting policies that have the effect of forcing all law schools, no matter what demographic they serve, to model themselves on wealthy elites like Yale, Harvard and Stanford.  ABA requirements that accredited law schools have state-of-the-art facilities, substantial libraries, an academically credentialed faculty and low student-teacher ratios operate to dis-accredit law schools “built on a low cost model which emphasizes teaching rather than research, relies upon a smaller number of full time faculty without tenure at lower pay, uses a large number of lawyers and judges to teach courses … possesses basic facilities and library collections, and focuses on teaching students practice skills.”

The U.S. News and World Report rankings, says Tamanaha, produce even worse deformations; in fact they produce behavior that is at least deceptive and borders on fraud. A law school dean who knows that the rank of her school will in large part determine the faculty it can attract, the quality of the applicants, the support provided by her university and the job opportunities of graduates will be tempted to fiddle with the numbers by (among other things) reporting high salaries for graduates when the pool surveyed is a tiny fraction of those who have the school’s degree, devising schemes to keep students with low test scores off the books by shunting them off to evening programs and inflating the employment rate by hiring its own for a short term.

This afternoon, the Federalist Society's Professional Responsibility & Legal Education Practice Group will be hosting a teleforum on the very topic.  Professor John O. McGinnis will be speaking on "Lawyers Without Law School Degrees?":

In many other nations, students learn law as undergraduates and after a brief apprenticeship are able to become practicing lawyers. Should states within the United States offer this option? Would this option reduce legal fees in the long run by reducing the costs of legal education? John O. McGinnis and Russell B. Mangas discussed this issue in a recent op-ed in the Wall Street Journal. Professor McGinnis will offer a Federalist Society teleforum to continue the debate over this question. After his remarks, he will take questions from the callers.

Here is the info:

Start : Wednesday, February 22, 2012 2:00 PM

End   : Wednesday, February 22, 2012 3:00 PM

Registration details: Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

On January 18th, the Supreme Court upheld in Golan v. Holder Congress’s power under the Patent and Copyright Clause to grant copyrights to foreign authors for their works that had been in the public domain in the United States, often for decades. Congress had granted these copyrights as part of the enabling legislation pursuant to the 1994 round of the GATT agreements, according to which the U.S. was arguably required to grant copyrights to foreign authors if the authors’ works were still in copyright in their home countries.

Today at 1 p.m. EST, our intellectual property experts will host a teleforum to discuss the case and whether the Patent and Copyright Clause of the Constitution should allow granting copyrights to existing, public domain works, and more generally, what limitations the IP Clause and the First Amendment place on Congress when it passes IP laws. They will also discuss how the challenged law in Golan affects incentives to create and distribute inventive and artistic works, and what type of future IP laws Congress might pass given the license granted it by the Court in this case.  Please note that the teleforum is open to all dues-paying members of the Federalist Society.

Featuring:

• Prof. Adam Mossoff, George Mason University School of Law
• Prof. Christopher Newman, George Mason University School of Law
• Prof. David Olson, Boston College Law School

Professor Newman recently discussed the decision in a SCOTUScast, while this past weekend Professor Olson published an op-ed article on the case in the Washington Examiner:

Imagine being director of a children's music camp that for decades has performed Prokofiev's "Peter and the Wolf," when suddenly, Congress decrees that you may not perform that music anymore.

Or imagine being a museum curator and suddenly being told that you must remove prints by Picasso and Escher that you've displayed for years.

Sound far-fetched? Congress did just this in 1994 when it granted copyrights to thousands of foreign authors for works that had been uncopyrighted in the United States for decades, and thus free for all to use.

Recently, in Golan v. Holder, the Supreme Court held, surprisingly, that it was perfectly all right for Congress to do this.

The plaintiffs in Golan -- teachers, orchestra conductors, and film archivists -- argued that the Constitution restricts Congress to granting copyrights only "to promote the progress of science."

By "promoting ... science" the Founders meant the creation and dissemination of knowledge. The plaintiffs argued that Congress' grant of copyrights to thousands of existing works obviously did not promote their creation, and that suddenly putting price tags on these previously free works limited, rather than enhanced, their dissemination.

The government defended the legislation, arguing that Congress was required to pass it by the 1994 General Agreement on Tariffs and Trade treaty. But even if this was so, treaties are inferior to the Constitution, and thus cannot give Congress the power to do something that the Constitution limits.

Unfortunately, the Supreme Court never really discussed what limits the Constitution's words "promote the progress" create. Rather, the court asserted that copyright laws need not be limited to encouraging the creation of new works; the court insisted they may also promote the dissemination of existing works.