FedSoc Blog

First Amendment Rights of Judges in the Spotlight

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by Publius
Posted January 28, 2015, 10:00 AM

Flickr user Leon Reed (lreed76) https://www.flickr.com/photos/leonandloisphotos/The Wall Street Journal reports:

Just a few days ago, the U.S. Supreme Court heard arguments on whether states can bar judicial candidates from soliciting campaign donations without violating their speech rights.

Across the coast in California, the state’s highest court has decided that judges there will no longer be allowed to belong to nonprofit youth organizations that discriminate on the basis of race, sex, sexual orientation or other criteria, effectively barring membership to the Boy Scouts of America.

The group wasn’t mentioned specifically by name, but the California rule was proposed last year in response to the Boy Scout’s policy of excluding gays from staff and leadership roles. After hearing from scores of judges and lawyers, some of whom fiercely opposed it, the California Supreme Court on Friday voted to adopt the rule, which takes effect next year.

The U.S. Supreme Court case is about the political speech rights of judges, while the California ethics rule deals with limits on free association. But both raise the question of how much First Amendment protection should be granted to judges who have a special duty to be fair and impartial, says Harvard University constitutional scholar Noah Feldman. . . .

Read the full article.

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SCOTUS Opinion 1/26/2015

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by Publius
Posted January 26, 2015, 10:18 AM

SCOTUS Opinion 1/26/2015The Supreme Court released one opinion this morning:

M & G Polymers USA v. Tackett: In an opinion by Justice Thomas, a unanimous Court held that the Sixth Circuit erred in reasoning that collective bargaining agreements created a right to lifetime contribution-free health care benefits for retirees, their surviving spouses, and their dependents. The judgment of the Sixth Circuit was vacated and the case remanded for application of ordinary principles of contract law.  Per Justice Thomas for the Court:

"This case arises out of a disagreement between a group of retired employees and their former employer about the meaning of certain expired collective-bargaining agreements. The retirees (and their former union) claim that these agreements created a right to lifetime contribution-free health care benefits for retirees, their surviving spouses, and their dependents. The employer, for its part, claims that those provisions terminated when the agreements expired. The United States Court of Appeals for the Sixth Circuit sided with the retirees, relying on its conclusion in International Union, United Auto, Aerospace, & Agricultural Implement Workers of Am. v. Yard-Man, Inc., 716 F. 2d 1476, 1479 (1983), that retiree health care benefits are unlikely to be left up to future negotiations. We granted certiorari and now conclude that such reasoning is incompatible with ordinary principles of contract law. We therefore vacate the judgment of the Court of Appeals and remand for it to apply ordinary principles of contract law in the first instance."

Justice Ginsburg filed a concurring opinion, which was joined by Justices Breyer, Sotomayor, and Kagan, suggesting that the employer was not necessarily certain to win on remand.

Categories: SCOTUSreport

McGinnis: Another Step Toward Neutral Principles in Campaign Regulation

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by Publius
Posted January 22, 2015, 2:30 PM

McGinnis: Another Step Toward Neutral Principles in Campaign RegulationAt the Library of Law and Liberty Blog, John O. McGinnis discusses the Williams-Yulee v. The Florida Bar case and its implications. He comments:

This week the Supreme Court heard argument in Williams-Yulee v. The Florida Bar. The case is the sixth campaign finance case heard by the Roberts Court but the first to focus on judicial elections. The Florida bar disciplined Ms. Williams-Yulee for sending a letter to solicit contributions for her campaign for election as a Florida trial judge. The bar found her solicitation to violate a rule of the Florida Code of Judicial Conduct that barred personal solicitation of campaign contributions.

A central doctrinal question in the case is whether the Court will apply its overinclusiveness/ under inclusiveness test to these regulations. The Court in First Amendment cases typically assesses whether the legislative solution offered by a statute fits the problem by asking whether it is underinclusive or overinclusive. One way of understanding this test is that a focus on the fit between the proffered purpose of the regulation and its scope helps to ferret out pretext, uncovering regulation that claims to solve a problem but is directed at impermissible objective. If the regulation is underinclusive with respect to its objective, it suggests that regulation is pretextual because it does not solve the problem. If it is overinclusive, it suggests that it is burdening more speech rights than is necessary because it applies regardless of whether the rationale for the legislation is present.

Assuming that the government interest is to avoid corruption or appearance of corruption,  preventing solicitation by personal letter is both over and underinclusive.

Read the full post.

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SCOTUS Opinions 1/21/2015

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by Publius
Posted January 21, 2015, 11:04 AM

SCOTUS Opinions 1/21/2015The Supreme Court released three opinions this morning:

(1) Hana Financial v. Hana Bank: In an opinion by Justice Sotomayor, the Court held unanimously that the question whether two trademarks may be tacked for purposes of determining priority is a question for the jury. The judgment of the Ninth Circuit was affirmed.  Per Justice Sotomayor:

​"​Rights in a trademark are determined by the date of the​ ​mark’s first use in commerce. The party who first uses a​ ​mark in commerce is said to have priority over other​ ​users. Recognizing that trademark users ought to be​ ​permitted to make certain mo​​difications to their marks​ ​over time without losing priority, lower courts have provided that, in limited circumstances, a party may clothe a​ ​new mark with the priority position of an older mark.​ ​This doctrine is called “tacking,” and lower courts have​ ​found tacking to be available when the original and revised marks are “legal equivalents” in that they create th​e​ same, continuing commercial impression. The question​ ​presented here is whether a judge or a jury should determine whether tacking is available in a given case. Because the tacking inquiry operates from the perspective of​ ​an ordinary purchaser or consumer, we hold that a jury​ ​should make this determination.​"​

(2) Gelboim v. Bank of America: In an opinion by Justice Ginsburg, the Court held unanimously that a lower court order dismissing petitioners' case in its entirety removed petitioners from the consolidated multidistrict litigation proceeding, thereby triggering their right to appeal under §1291. The judgment of the Second Circuit was reversed and the case remanded. Per Justice Ginsburg:

​"​An unsuccessful litigant in a federal district court may​ ​take an appeal, as a matter of right, from a “final decisio[n] of the district cour[t].” 28 U. S. C. §1291. The question here presented: Is the right to appeal secured by​ ​§1291 affected when a case is consolidated for pretrial​ ​proceedings in multidistrict litigation (or MDL) authorized​ ​by 28 U. S. C. §1407?​....The Court of Appeals for the Second Circuit, acting on​ ​its own motion, dismissed the appeal filed by​ [petitioners]​ for want of appellate jurisdiction. We reverse the​ ​Second Circuit’s judgment and hold that the ​petitioners' complaint retained its independent status for​ ​purposes of appellate jurisdiction under §1291. Petitioners’ right to appeal ripened when the District Court dismissed their case, not upon eventual completion of multi​district proceedings in all of the consolidated cases.​"​

(3) Dep't of Homeland Security v. MacLean: In an opinion by Chief Justice Roberts, the Court held by a vote of 7-2 that federal air marshal MacLean's disclosure was not "specifically prohibited by law." The judgment of the Federal Circuit was affirmed. Per the Chief Justice:

​"​Federal law generally provides whistleblower protections to an employee who discloses information revealing​ ​“any violation of any law, rule, or regulation,” or “a substantial and specific danger to public health or safety.” 5​ ​U.​ ​S. C. §2302(b)(8)(A). An exception exists, however, for​ ​disclosures that are “specifically prohibited by law.”​ ​Ibid.​ ​Here, a federal air marshal publicly disclosed that the​ ​Transportation Security Administration (TSA) had decided to cut costs by removing air​ ​marshals from certain​ ​long-distance flights. The​ ​question presented is whether​ ​that disclosure was “specifically prohibited by law.”​"​ ​According to the majority, the disclosure was prohibited neither by TSA regulations on sensitive security information​ (because they did not count as "law" for purposes of the statute in question), nor by the statutory provision that empowers the TSA to prescribe regulations on information disclosure.  Concerns regarding public endangerment as a result of whistleblower disclosures, while legitimate, must be addressed by Congress or the President, not the Court.

Justice Sotomayor dissented, joined by Justice Kennedy.

Categories: SCOTUSreport

SCOTUS Opinions 1/20/15: Holt v. Hobbs & Teva Pharmaceuticals v. Sandoz

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by Publius
Posted January 20, 2015, 12:37 PM

SCOTUS Opinion 1/20/15The Court today issued two merits opinions separately from the order list:

(1)  Holt v. Hobbs, with Justice Alito issuing the opinion for a unanimous Court.  The Court held that an Arkansas correctional policy requiring a Muslim inmate to shave his 1/2 inch beard violated the federal RLUIPA statute.  The Eighth Circuit was reversed and the case remanded for further proceedings:

​"​Petitioner Gregory Holt, also known as Abdul Maalik​ ​Muhammad, is an Arkansas inmate and a devout Muslim​ ​who wishes to grow a​ 1/2​-inch beard in accordance with his​ ​religious beliefs. Petitioner’s objection to shaving his​ ​beard clashes with the Arkansas Department of Correction’s grooming policy, which prohibits inmates from​ ​growing beards unless they have a particular dermatological condition. We hold that the Department’s policy, as​ ​applied in this case, violates the Religious Land Use and​ ​Institutionalized Persons Act of 2000 (RLUIPA)​...which prohibits a state​ ​or local government from taking any action that substantially burdens the religious exercise of an institutionalized​ ​person unless the government demonstrates that the​ ​action constitutes the least restrictive means of furthering​ ​a compelling governmental interest. We conclude in this case that the Department's policy substantially burdens petitioner's religious exercise.​ Although we do not question the importance of the Department’s interests in stopping the flow of​ ​contraband​ ​and facilitating prisoner identification, we do doubt​ ​whether the prohibition against petitioner’s beard furthers​ ​its compelling interest about contraband. And we conclude that the Department has failed to show that its​ ​policy is the least restrictive​ ​means of furthering its compelling interests. We thus reverse the decision of the​ ​United States Court of Appeals for the​ ​Eighth Circuit.​"​

​Justice Ginsburg filed a concurring opinion in which Justice Sotomayor joined, and Justice Sotomayor also filed a concurring opinion.​

​(2) Teva Pharmaceuticals USA v. Sandoz with Justice Breyer issuing the opinion of the Court and holding that a clear error rather than de novo standard applies to appellate review of a trial court's resolution of subsidiary factual matters in the course of construing a patent claim.  By a vote of ​7-2 the decision of the Federal Circuit is vacated and remanded:

​"​I​n ​Markman​ ​v.​ ​Westview Instruments, Inc., 517 U. S.​ ​370 (1996), we explained that a patent claim is that “por­tion of the patent document that defines the scope of the​ ​patentee’s rights.”​ ​Id.,​ ​at 372. We held that “the con­​​struction of a patent, including terms of art within its​ ​claim,” is not for a jury but “exclusively” for “the court” to​ ​determine.​ ​Ibid. That is so even where the construction​ ​of a term of art has “evidentiary underpinnings.”​ ​Id.,​ ​at​ ​390.​ ​Today’s case involves claim​ ​construction with “eviden­tiary underpinnings.​"...​And, it requires​ ​us to determine what standard the Court of Appeals​ ​should use when it reviews a trial judge’s resolution of an​ ​underlying factual dispute. Should the Court of Appeals​ ​review the district court’s factfinding​ ​de novo​ ​as it would​ ​review a question of law? Or, should it review that factfinding as it would review a trial judge’s factfinding in​ ​other cases, namely by taking​ ​them as correct “unless​ ​clearly erroneous?” See Fed. Rule Civ. Proc. 52(a)(6). We​ ​hold that the appellate court must apply a “clear error,”​ not a de novo, standard of review."

​Justice Breyer's opinion for the Court was joined by all justices except Thomas and Alito.  Justice Thomas filed a dissenting opinion in which Justice Alito joined.

Categories: SCOTUSreport

SCOTUS Grants Same-Sex Marriage Cases

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by Publius
Posted January 16, 2015, 3:50 PM

SCOTUS Grants Same-Sex Marriage CasesOrder pasted below:

14-556 ) ) OBERGEFELL, JAMES, ET AL. V. HODGES, RICHARD, ET AL.
14-562 ) ) TANCO, VALERIA, ET AL. V. HASLAM, GOV. OF TN, ET AL.
14-571 ) ) DeBOER, APRIL, ET AL. V. SNYDER, GOV. OF MI, ET AL.
14-574 ) ) BOURKE, GREGORY, ET AL. V. BESHEAR, GOV. OF KY, ET AL.

The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions:

1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

A total of ninety minutes is allotted for oral argument on Question 1. A total of one hour is allotted for oral argument on Question 2. The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions. The briefs of petitioners are to be filed on or before 2 p.m., Friday, February 27, 2015. The briefs of respondents are to be filed on or before 2 p.m., Friday, March 27, 2015. The reply briefs are to be filed on or before 2 p.m., Friday, April 17, 2015.

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WSJ: Fewer and Fewer Students Are Applying to Law School

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by Publius
Posted January 15, 2015, 2:11 PM

Fewer and Fewer Students Are Applying to Law SchoolThe Wall Street Journal Law Blog reports:

The law school applicant pool appears to be getting more and more shallow.

The number of people applying to law school is down 8.5% compared to last year at this time, according to the latest figures released by the Law School Admission Council.

As of Jan. 9, just shy of 20,000 would-be lawyers had submitted applications to law schools. The downward trend is even starker if you compare it to figures from three years ago. By this point in 2012, about 30,000 students had applied.

Read the full article.

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SCOTUS Opinions 1/14/2015

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by Publius
Posted January 14, 2015, 10:39 AM

SCOTUS Opinions 1/14/2015The Court issued two opinions today:

(1) T-Mobile South, LLC v. City of Roswell. (Telecomms case)  By a vote of 6-3 the judgment of the Eleventh Circuit is reversed and the case remanded. The issue and outcome are summarized in the opening paragraph of Justice Sotomayor's opinion for the Court:

"The Telecommunications Act of 1996 provides, in relevant part, that '[a]ny decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.' 110 Stat. 151, 47 U. S. C. §332(c)(7)(B)(iii). The question presented is whether, and in what form, localities must provide reasons when they deny telecommunication companies’ applications to construct cell phone towers. We hold that localities must provide or make available their reasons, but that those reasons need not appear in the written denial letter or notice provided by the locality. Instead, the locality’s reasons may appear in some other written record so long as the reasons are sufficiently clear and are provided or made accessible to the applicant essentially contemporaneously with the written denial letter or notice."

Justice Sotomayor was joined by Justices Scalia, Kennedy, Breyer, Alito, and Kagan.  Justice Alito also filed a concurring opinion.  Chief Justice Roberts dissented, joined by Justice Ginsburg, and by Justice Thomas as to Part I.  Justice Thomas also filed a separate dissenting opinion.

(2) Jennings v. Stephens. (Habeas case).  By a vote of 6-3, the judgment of the Fifth Circuit is reversed and the case remanded. Justice Scalia delivered the opinion of the Court, compressed here into the following summary:

"Petitioner Robert Mitchell Jennings was sentenced to death for capital murder. He applied for federal habeas corpus relief on three theories of ineffective assistance of counsel, prevailing on two. The State appealed, and Jennings defended his writ on all three theories. We consider whether Jennings was permitted to pursue the theory that the District Court had rejected without taking a cross-appeal or obtaining a certificate of appealability....[A]n appellee who does not cross-appeal may not “attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary....Since Jennings did not cross-appeal the denial of his Spisak theory [rejected below], we must determine whether urging that theory sought to enlarge his rights or lessen the State’s under the District Court’s judgment granting habeas relief....Because Jennings’ Spisak theory would neither have enlarged his rights nor diminished the State’s rights under the District Court’s judgment, he was required neither to take a cross-appeal nor to obtain a certificate of appealability. We reverse the judgment of the Fifth Circuit and remand the case for consideration of Jennings’ Spisak claim."

Justice Scalia was joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Justice Thomas filed a dissenting opinion, which Justices Kennedy and Alito joined.

Categories: SCOTUSreport

In Memoriam

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by Publius
Posted January 13, 2015, 10:34 AM

The Federalist Society mourns the passing of Walter Berns and Harry Jaffa. In a coincidence reminiscent of the deaths of John Adams and Thomas Jefferson, these two towering figures in American political thought died on the same day, January 10, 2015. 

Walter Berns was a particularly close friend of the Federalist Society, having participated in our first student symposium at Yale Law School in 1982--the first of many--and leant his voice and credibility to the then-fledgling student organization. His and Harry Jaffa's debate over the role of the Declaration of Independence in understanding the Constitution remains a topic of lively discussion among Federalist Society members to this day, one that has enriched our understanding of both documents and of the American Founding. RIP.

Categories: Federalist Society

Los Angeles v. Patel & the Constitutional Structure of Judicial Review

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by Publius
Posted January 07, 2015, 3:13 PM

Los Angeles v. Patel and the constitutional structure of judicial reviewAt the Volokh Conspiracy, Professor Nicholas Quinn Rosenkranz comments:

On March 3, at 10 a.m., the Supreme Court will hear arguments in Los Angeles v. Patel, a fascinating case about the proper structure of a Fourth Amendment challenge.

Los Angeles has an ordinance that requires hotels to maintain certain records about their guests and to produce those records for police officers upon request — which is to say, the officer need not necessarily have a warrant or any particular suspicion. Hoteliers claim this regime violates the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Oddly, though, the hoteliers have chosen to challenge the ordinance “on its face.”  They do not allege that any particular search was unreasonable; indeed, they do not present the facts of any particular search at all.  Los Angeles contends that this “facial” challenge is improper: In its view, a Fourth Amendment challenge must be an “as-applied” challenge.  (Los Angeles has the great good fortune to be represented, in part, by our own co-Conspirator Orin Kerr; the Los Angeles brief is available here.)  The case thus presents the question of whether a Fourth Amendment challenge can be purely “facial” or must be “as-applied.”

Read the full article.

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The Supreme Court’s Shadow Docket

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by Publius
Posted January 07, 2015, 1:10 PM

Photo by Flickr user Danny Huizinga https://www.flickr.com/photos/dhuiz/In a forthcoming article to be published in the NYU Journal of Law & Liberty, Prof. William Baude argues:

The 2013 Supreme Court Term provides an occasion to look beyond the Court’s merits cases to the Court’s shadow docket — a range of orders and summary decisions that defy its normal procedural regularity.

I make two claims: First, many of the orders lack the transparency that we have come to appreciate in its merits cases. Some of those orders merit more explanation, and should make us skeptical of proposals to depersonalize the Court.

Second, I address summary reversal orders in particular. As a general matter, the summary reversal has become a regular part of the Supreme Court’s practice. But the selection of cases for summary reversal remains a mystery. This mystery makes it difficult to tell whether the Court's selections are fair.

I catalogue the Roberts Court’s summary reversals and suggest that they can be grouped into two main categories — a majority that are designed to enforce the Court’s supremacy over recalcitrant lower courts, and a minority that are more akin to ad hoc exercises of prerogative, or “lightning bolts.” The majority, the supremacy-enforcing ones, could be rendered fairer through identification of areas where lower-court willfulness currently goes unaddressed. We may simply be stuck with the lightning bolts.

Read the full article.

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WSJ: Curbing Congress’s Crime Addiction

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by Publius
Posted January 05, 2015, 11:34 AM

Curbing Congress’s Crime AddictionAn editorial in The Wall Street Journal applauds House Republicans for debating an important rule change. They comment:

On Monday the House Republican conference will debate the rules of the chamber, including a measure to refer proposed new criminal offenses to the House Judiciary Committee. This is supposed to be the routine practice, but Members can sidestep Judiciary by adding to an existing statute.

This loophole can contribute to over-criminalization or duplicating state law. The Congressional Research Service (CRS) reports that 403 crimes were added to the federal code between 2008 and 2013, 39 of which weren’t referred to the Judiciary Committee.

The proposed rule change has bipartisan and cross-ideological support, from the Heritage Foundation to the National Association of Criminal Defense Lawyers.

Read the full article.

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Opinion: The Clean Power Plan Is Unconstitutional

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by Publius
Posted December 31, 2014, 10:13 AM

The Clean Power Plan Is UnconstitutionalIn The Wall Street Journal, Harvard Law Professor Laurence H. Tribe comments:

As a law professor, I taught the nation’s first environmental law class 45 years ago. As a lawyer, I have supported countless environmental causes. And as a father and grandfather, I want to leave the Earth in better shape than when I arrived.

Nonetheless, I recently filed comments with the Environmental Protection Agency urging the agency to withdraw its Clean Power Plan, a regulatory proposal to reduce carbon emissions from the nation’s electric power plants. In my view, coping with climate change is a vital end, but it does not justify using unconstitutional means.

Although my comments opposing the EPA’s proposal were joined by a major coal producer, they reflect my professional conclusions as an independent legal scholar. I say only what I believe, whether I do so pro bono, or in this case having been retained by others. After studying the only legal basis offered for the EPA’s proposed rule, I concluded that the agency is asserting executive power far beyond its lawful authority.

Read the full article.

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Study: How Academia’s Liberal Bias Is Killing Social Science

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by Publius
Posted December 30, 2014, 9:54 AM

Photo by Flickr user velkr0In The Week Pascal-Emmanuel Gobry discusses a new report about bias in academia. He comments:

I was very gratified to read this very enlightening draft paper written by a number of social psychologists on precisely this topic, attacking the lack of political diversity in their profession and calling for reform. For those who have the time and care about academia, the whole thing truly makes for enlightening reading. The main author of the paper is Jonathan Haidt, well known for his Moral Foundations Theory (and a self-described liberal, if you care to know).

Although the paper focuses on the field of social psychology, its introduction as well as its overall logic make many of its points applicable to disciplines beyond social psychology.

The authors first note the well-known problems of groupthink in any collection of people engaged in a quest for the truth: uncomfortable questions get suppressed, confirmation bias runs amok, and so on.

But it is when the authors move to specific examples that the paper is most enlightening.

They start by debunking published (and often well-publicized) social psychology findings that seem to suggest moral or intellectual superiority on the part of liberals over conservatives, which smartly serves to debunk both the notion that social psychology is bereft of conservatives because they're not smart enough to cut it, and that groupthink doesn't produce shoddy science.

Read the full article.

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Two States Sue to Block Colorado Marijuana Markets

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by Publius
Posted December 19, 2014, 10:14 AM

Two States Sue to Block Colorado Marijuana MarketsSCOTUSblog reports:

Two of Colorado’s neighboring states, arguing that the legalization of marijuana for Coloradans is causing crime problems across state borders, asked the Supreme Court on Thursday to allow them to file a lawsuit directly before the Justices.  If the suit goes forward, Nebraska and Oklahoma’s filing said, the Court should rule that the commercial part of the Colorado scheme is unconstitutional and could no longer be enforced.

Under the Constitution, states with legal complaints against other states have a right to sue them in the Supreme Court without first going through a lower court, but they need the Justices’ permission to do so.  Nebraska and Oklahoma chose that route, their filing said, because no other court can protect neighboring states from the impact of Colorado’s marijuana marketing law and rules.

Read the full article.

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