FedSoc Blog

Justice Department Defends Soledad Cross


by Publius
Posted April 11, 2014, 7:11 PM

The San Diego Union-Tribune reports:

The U.S. Justice Department will defend keeping the cross at Mount Soledad but is opposing an attempt to get the case before the U.S. Supreme Court.

The Mount Soledad Memorial Association wants the nation’s high court to decide in the years-long battle over the cross, which opponents say should come down because it represents an unlawful endorsement of Christianity on federal land.

The 9th U.S. Circuit Court of Appeals agreed with that argument in its last decision on the issue, overturning a San Diego judge’s ruling that the cross could stay.

In its notice to the Supreme Court this week, the Justice Department said it will take the side of the memorial association in arguing the 29-foot cross should stay at the Korean War memorial site. But it also said that rather than having the Supreme Court justices hear the appeal, it wants a full, 11-judge panel of the 9th Circuit to reconsider the removal ruling that came from three of that court’s judges.

Memorial Association President Bruce Bailey said he still believes the case will ultimately get before the Supreme Court, where he said his members “prefer to have this case heard as soon as possible.”

Peter Irons, a civil liberties attorney who represented an original opponent of the cross, agreed that no matter how the 9th Circuit may rule in a rehearing, the case will most likely wind up before the high court.

Categories: External Articles

Judge: Holder “Disrespected” Judicial Branch In Sentencing Change


by Publius
Posted April 11, 2014, 3:47 PM

According to National Review Online:

The United States Sentencing Commission Thursday unanimously approved an amendment to revise sentencing guidelines for non-violent drug offenders, but not before one commissioner accused Attorney General Eric Holder of having “disrespected” the judicial branch’s role in sentencing reform.

“I regret that, before we voted on the amendment, the Attorney General instructed Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward,” Judge William Pryor, Jr. said at a public hearing in Washington. “That unprecedented instruction disrespected our statutory role, ‘as an independent commission in the judicial branch,’ to establish sentencing policies and practices under the Sentencing Reform Act of 1984.”

Nevertheless, Pryor voted with the seven other Republican and Democratic judges to reduce sentencing guidelines involving drug offenders.

In August, Holder revealed his “Smart on Crime” initiative, which includes recommendations for reduced sentencing, without consulting with the Sentencing Commission—an independent agency within the judicial branch tasked with setting such policies. Although the sentencing reforms themselves were not controversial, Holder’s cavalier approach to separation of powers, including a March memo in which he “instructed the Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward,” irritated commissioners and alarmed supporters of constitutional separation of powers.

The amendment approved Thursday, aims to reduce federal prison overcrowding by reducing non-violent drug trafficking offenders’ sentences by 17 percent.

Holder did not attend the meeting. Instead, Commissioner Jonathan Wroblewski responded to what he called Pryor’s “very, very, very serious charge.” Wroblewski insisted that what the Attorney General did was “not only lawful, but in the greatest respect of the Justice Department,”

Chief Judge Ricardo Hinojosa stated that he was “surprised” by Wroblewski’s statement. He concurred with Pryor that Holder is setting a “dangerous precedent,” noting that two years ago, the Justice Department testified that it was not ready for reductions in sentencing, but that “all of a sudden, because the Attorney General says so” the DOJ has changed its course.

The meeting concluded with Chief Judge Patti Saris applauding the commission for its unanimous vote. But observers joined Pryor and Hinojosa in condemning Holder’s high-handed approach to constitutional boundaries.

“For those committed to the rule of law, the question now goes beyond whether reducing sentences for dealers in dangerous drugs is wise. It’s whether the Attorney General, the chief law enforcement officer in the United States, is committed to following the law as it exists, or, instead, as he wants and speculates it might become,” William G. Otis a professor at Georgetown University Law Center, said in a statement. “One way to consider this question is to ask whether, if the Attorney General ordered prosecutors to seek increased sentences that were, at the time, only preliminary, those applauding Mr. Holder’s actions would be as enthusiastic as they are today.”

Categories: External Articles

Justice Stevens: The Five Extra Words that Can Fix the Second Amendment


by Publius
Posted April 11, 2014, 1:52 PM

Retired Justice John Paul Stevens comments in the Washington Post:

Following the massacre of grammar-school children in Newtown, Conn., in December 2012, high-powered automatic weapons have been used to kill innocent victims in more senseless public incidents. Those killings, however, are only a fragment of the total harm caused by the misuse of firearms. Each year, more than 30,000 people die in the United States in firearm-related incidents. Many of those deaths involve handguns.

The adoption of rules that will lessen the number of those incidents should be a matter of primary concern to both federal and state legislators. Legislatures are in a far better position than judges to assess the wisdom of such rules and to evaluate the costs and benefits that rule changes can be expected to produce. It is those legislators, rather than federal judges, who should make the decisions that will determine what kinds of firearms should be available to private citizens, and when and how they may be used. Constitutional provisions that curtail the legislative power to govern in this area unquestionably do more harm than good.

The first 10 amendments to the Constitution placed limits on the powers of the new federal government. Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of the Second Amendment, which provides that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.”

When I joined the court in 1975, that holding was generally understood as limiting the scope of the Second Amendment to uses of arms that were related to military activities. During the years when Warren Burger was chief justice, from 1969 to 1986, no judge or justice expressed any doubt about the limited coverage of the amendment, and I cannot recall any judge suggesting that the amendment might place any limit on state authority to do anything. . . .

Categories: External Articles

5th Amendment Trumps 1st in Prosecution Involving Unnamed Commenters


by Publius
Posted April 11, 2014, 10:23 AM

Alison Frankel writes for Reuters:

When an anonymous speaker’s First Amendment rights conflict with a criminal defendant’s right to due process under the Fifth Amendment, which constitutional protection prevails?

There’s actually not a lot of precedent on how to balance those competing constitutional protections, according to a ruling Tuesday by the 5th U.S. Circuit Court of Appeals. The U.S. Supreme Court has gone out of its way to protect unnamed speakers, hearkening back — most recently in its 1995 ruling in McIntyre v. Ohio Elections Commission — to this country’s long tradition of anonymous political speech. On the other hand, the trial judge in the case before the 5th Circuit believed there was a reasonable possibility that the unmasking of two pseudonymous commenters to an online news article would reveal misconduct by federal prosecutors. Tuesday’s opinion left the 5th Circuit with a chance to change its position some day, but for now, the court said, it’s sticking with the trial judge: The Fifth Amendment trumps the First when anonymous online comments are possible evidence of due process violations.

The circumstances of the case that prompted the 5th Circuit’s holding were, to quote the opinion, “extraordinary.” Last June, after a years-long investigation, the former director of the non-profit New Orleans Affordable Homeownership was indicted by a federal grand jury for allegedly accepting kickbacks from contractors her group employed to repair houses damaged by Hurricane Katrina. Two months after the director, Stacey Jackson, was charged, U.S. District Judge Kurt Engelhardt of New Orleans issued a stunning opinion in a different Katrina corruption case against several former New Orleans police officials. Engelhardt vacated their convictions, finding rampant misconduct by a former first assistant and senior litigation counsel in the New Orleans U.S. Attorney’s office. Among their misdeeds: anonymous online comments and blog posts about ongoing investigations, prosecutions and even trials. To call the posts intemperate would be to understate drastically their offensiveness.

Three days after Engelhardt issued his opinion, Jackson’s lawyers at Crull, Castaing & Lilly filed a motion to compel the government to turn over the report on its internal investigation of misconduct at the U.S. Attorney’s office. The motion argued(among other things) that defense lawyers had already pressed prosecutors to disclose whether bad apples had posted anonymously about Jackson, but the government had stonewalled. To support the discovery motion, Jackson’s lawyers attached a printout of an online 2008 article about the Jackson investigation at the Times-Picayune’s Nola.com site. The article drew 55 comments, including one signed with a pseudonym used by a former assistant prosecutor cited for misconduct in Judge Engelhardt’s opinion.

The federal magistrate judge in Jackson’s case, Joseph Wilkinson, declined to hand over the internal report to Crull Castaing. But he did single out two anonymous comments on the Times-Picayune’s 2008 article — one signed by “aircheck” and the other by “jammer1954″ — that were posted at around the same time as the comment apparently attributable to the disgraced former assistant U.S. Attorney. If defense lawyers could come up with evidence that those two comments came from management-level prosecutors or investigators or from Justice Department employees directly involved in her case, Wilkinson said, Jackson might be able to establish a pattern of prosecutorial misconduct that violated her due process rights.

Jackson’s lawyers promptly subpoenaed the Times-Picayune to provide identifying information about the two anonymous posters from 2008. The newspaper, represented by Fishman Haygood Phelps Walmsley Willis & Swanson, moved to quash the subpoena, arguing that under widely accepted standards for whether to expose anonymous online posters in civil litigation, first set out in Dendrite v. Doe, the First Amendment rights of the anonymous Nola.com bloggers should protect their identity. Jackson hadn’t provided any evidence beyond supposition that the posts were by federal lawyers or investigators, the newspaper said, and even if they were, it wasn’t clear how two comments buried under a 2008 news story were proof that Jackson’s 2013 indictment was tainted by prosecutorial misconduct.

Judge Wilkinson, in the opinion codified Tuesday by the 5th Circuit, said there are limits on the First Amendment rights of anonymous speakers, especially when those speakers may be federal prosecutors or investigators. . . .

Categories: External Articles

Utah Backs Away from Anti-Gay-Parenting Study


by Publius
Posted April 10, 2014, 12:18 PM

Dale Carpenter comments at the Volokh Conspiracy:

Last night, on the eve of oral argument today in Kitchen v. Herbert, the Tenth Circuit challenge to Utah’s ban on same-sex marriage, the state filed an unusual letter distancing itself from a controversial study that questioned the parenting abilities of gay men and lesbians in comparison to married biological fathers and mothers. The state had cited the study, produced by University of Texas sociologist Mark Regnerus, in two footnotes in its opening brief to the court submitted earlier this year. In light of what Utah called “recent press reports and analysis” of the Regnerus paper (presumably including a federal district court decision calling Regnerus’ views “not worthy of serious consideration”), the state thought it important to “supplement” its initial brief in two respects.

First, Utah said that its “principal concern” in the same-sex marriage litigation is that allowing gay couples to wed might harm “the children of heterosexual parents.” (emphasis original). In other words, the state is not claiming that allowing same-sex marriage might somehow harm the children of gay couples. The comparison of outcomes for children in same-sex couple households and opposite-sex couple households , argued the state, “has little if any bearing on” the welfare of children being raised by opposite-sex couples “given that being raised in a same-sex household would normally not be one of the alternatives available to children of heterosexual parents.”  The unstated corollary is that being raised by a married biological mother and father would not normally be one of the alternatives available to children of same-sex parents.  This is a reasonable concession by Utah, and echoes a point that same-sex-marriage advocates have been making for years. If gay couples were asking for the right to snatch away the children of married mothers and fathers then a comparison of the two family forms would be relevant in the debate. But that’s obviously not what they’re asking for; they want only the protection of marriage for their own families. The welfare of children being raised by same-sex couples, apparently, is not something that concerns Utah in this litigation.

The state, of course, continues to make the bold claim that same-sex marriage might eventually hurt children raised in heterosexual homes. That’s a point worth considering, and I’m sure gay-marriage advocates will be eager to contest it at oral argument today.  But Utah’s letter has at least done us the service of beginning to clear up years of constitutional confusion on this issue. Even under the most deferential form of judicial review, it’s hard to see the connection between Regnerus’s findings and the legitimate state interest in the welfare of the vast majority of children being raised in the households of heterosexual parents.

The second clarification in Utah’s letter frankly acknowledges the methodological limitations and inconclusive nature of Regnerus’ paper, a point that critics in the field of sociology have been making since the paper first appeared . . . .


Categories: External Articles

Northwestern University Challenges Athlete Unionization


by Publius
Posted April 10, 2014, 10:04 AM

Lyle Denniston comments at SCOTUSblog:

In a case that college sports leaders expect to go to the Supreme Court, Northwestern University on Wednesday asked the National Labor Relations Board to deny undergraduate athletes the status of employees with a right to join a labor union and bargain for salaries and other benefits.  That filing is here.

The university’s appeal to the Board challenged a March 26 decision by a regional NLRB official that Northwestern must treat its football players as employees and hold an election on whether they want to unionize.  That ruling, the university said, “set out to alter the underlying premise upon which varsity sports is based” — that students go to college to be educated, not to work for a living.

While the fifty-page filing was heavily focused on arguments against the details of the ruling by Regional Director Peter Sung Ohr of Chicago, it also relied upon a 1980 Supreme Court ruling (NLRB v. Yeshiva University) rejecting a claim that university faculty members with managerial duties were employees.

In that decision, the Court had remarked that “the ‘business’ of a university is education” and that “the principles developed for use in the industrial setting cannot be imposed blindly on the academic world.”

The organization that regulates college sports, the National Collegiate Athletic Association, has been following the Northwestern case closely.  NCAA President Mark Emmert, appearing last month on the CBS-TV program, “Face the Nation,” said that the Ohr decision “so fundamentally changes the nature of what college sport is about. And it blows up what is one of America’s iconic activities.  I think it winds up in the Supreme Court.”

The case goes first to the five-member NLRB.  Beyond the Board, the prospect for review in a federal appeals court is complex, and depends upon the nature of the dispute and how the parties react to a Board ruling.  Ultimately, an appeal to the Supreme Court is sometimes — but not always — an option.

This case only applies to college athletes at private institutions, and only to those who have scholarships.  Federal labor law does not apply to those who work for state or local governments, such as a state university.  Most colleges insist that they lose money on their sports programs, but universities in the major conferences of football and basketball generate huge revenues through those programs.

The case involves a Northwestern football quarterback, Kain Colter, and a labor group that he helped create to represent college athletes, the College Athletes Players Association.  In its filing Wednesday, Northwestern University disputed whether that group is truly a labor union, and noted that, as of now, it has no labor contract with any employer.

While most of the document is focused on the scope of federal labor law, it does make a passing constitutional claim based on the doctrine — founded in the First Amendment — of academic freedom.  If a player attending on scholarship were to lose that because of failings or academic misconduct as a student, the university argued, that would be subject to union arbitration review, “which would obviously interfere with academic decision-making that has nothing whatsoever to do with the purported economic relationship between the student-athlete and the university.”

The student athlete pursuing the case and the college sports union will have a chance to reply to the challenge before the NLRB rules. That process is likely to take several months, and appeals would take longer.

Categories: External Articles

Holder Claims DOJ Never Sought to End Louisiana Voucher Program


by Publius
Posted April 10, 2014, 8:44 AM

The Washington Free Beacon reports:

Attorney General Eric Holder testified on Friday that the Justice Department (DOJ) never intended to stop the Louisiana school voucher program, despite his agency’s lawsuit that requested a permanent injunction against school choice scholarships.

Under questioning before a House appropriations subcommittee, Rep. Andy Harris (R., Md.) got into a heated exchange after asking Holder if the DOJ’s Civil Rights Division was responsible for the lawsuit “against” the state’s scholarship program, which allows students to flee failing schools.

“You buy into a premise that’s not correct,” Holder said. “That was not the division that was doing anything of that nature in Louisiana.”

“We were seeking to get from the state of Louisiana information about their voucher program,” he said. “[We] never, ever took the position that we were against vouchers.”

Harris questioned further. “Is that the division that went to court in Louisiana to ask for that information?” he said. “These are not complicated questions, Mr. Attorney General.”

“What I was saying is that we never sought to do anything with the voucher program as much as to get information—and which a federal judge ultimately agreed with us,” Holder said. “And we worked out something with the state. It’s a talking point that Gov. [Bobby] Jindal and others—I guess you—think makes good political fodder, but it’s totally inconsistent with the fact.”

Harris disputed that characterization of his efforts.

“I actually care about the education of children as Gov. Jindal does,” Harris said. “Mr. Attorney General you used federal money to go into a state court to try to hinder, hamper, disable a school voucher program—the majority of which goes to minority students. So I’m just going to take issue with your characterization of a talking point because we shouldn’t use children, especially minority children—you can shake your head all you want, maybe you disagree that we shouldn’t use minority children as wedges.”

Holder again repeated that the DOJ took “no position with regard to the voucher program.”

“We only sought information about how the program was being run and how it affected a longstanding statewide anti-discrimination settlement that had been in place for years,” he said.

However, the DOJ did request a permanent injunction against the program last August, which would have required all vouchers to be pre-approved by a federal judge.

The first line of the lawsuit said that the DOJ wanted to put a stop to “any” vouchers:

The United States asks this Court to permanently enjoin the State of Louisiana from awarding any school vouchers (‘vouchers’ or ‘scholarships’) to students attending school in districts operating under federal desegregation orders unless and until the state receives authorization from the appropriate federal court overseeing the applicable desegregation case.

The DOJ ultimately dropped its injunction request, but still insisted on federal oversight of the program that Jindal warned could kill the program through red tape.

Jindal said he hoped Holder was under oath when he said the DOJ was not trying to stop the program. . . .

Categories: External Articles

ABA Data Says Job Outlook for Newly Minted Lawyers Still Bleak


by Publius
Posted April 09, 2014, 4:30 PM

The ABA Journal reports:

The job outlook for newly minted lawyers remains bleak, new figures show.

Fifty-seven percent of all 2013 law school graduates were employed in full-time, long-term legal jobs requiring bar passage as of Feb. 15, according to data released Wednesday by the ABA Section of Legal Education and Admissions to the Bar.

Still, that’s up slightly from last year, when 56.2 percent of all 2012 law school graduates were reported to be in full-time, long-term legal jobs requiring a law license nine months after graduation.

Another 10.1 percent of all 2013 graduates were employed in long-term, full-time jobs in which a law degree is preferred, which was also up slightly from the class of 2012, when 9.5 percent of all graduates held such jobs.

However, the percentage of 2013 graduates reported as unemployed and seeking work also rose slightly to 11.2 percent this year from last year, when 10.6 percent of 2012 graduates were reported as unemployed and seeking work.

The percentage of positions funded by law schools also increased incrementally this year from last year, from 3.9 percent for all 2012 graduates to 4 percent for the class of 2013.

Last year’s graduating class of 46,776 students was also the largest ever, up 412 students from the 46,364 students in the graduating class of 2012.

Law schools reported employment outcomes for 97.7 percent of their 2013 graduates, which was also up slightly from the 97.4 percent reporting rate for the class of 2012.

Other employment data reported to the section by schools indicates:

• While the percentage of law firm positions increased only marginally, hiring at law firms of 500 or more lawyers rose by nearly 10 percent, from 3,643 for the class of 2012 to 3,989 for the class of 2013.

• The percentage of graduates employed in business and industry rose to 15.2 percent for the class of 2013 from 14.9 percent for the class of 2012

• The percentage of graduates employed in government positions increased to 10.6 percent from 10 percent, while the percentage of graduates employed in public interest positions dropped from 5.9 percent to 4.8 percent. Those changes are due at least in part to a change in the classification for public defender positions, which are now classified as government jobs, not public interest jobs as they were previously.

An online chart (PDF) provides selected definitions and aggregate data breakdowns with comparisons to the previous year. The complete data set and school-by-school employment summaries are available here.


Categories: External Articles

Hillary Clinton Knocks Supreme Court’s Campaign Finance Decisions


by Publius
Posted April 09, 2014, 4:23 PM

According to CNN:

Former Secretary of State Hillary Clinton criticized the Supreme Court's view of campaign finance at a Tuesday event, telling an audience in Portland, Oregon, that the judicial body's ruling will limit the number of people involved in the political process.

"With the rate the Supreme Court is going, there will only be three or four people in the whole country that have to finance our entire political system by the time they are done," Clinton said during the question and answer portion of an appearance at The World Affairs Council of Oregon.

Last week, the Supreme Court decided in a 5-4 ruling to allow more private money in electoral politics by removing a limit on the total number of candidates one can donate to in one election season.

The ruling means a wealthy liberal or conservative can donate to as many election candidates as desired nationwide, as long as no contender receives more than the $5,200 cap.

This latest decision comes years after the Supreme Court eased spending by outside political organizations in the 2010 Citizens United case. The decision opened the floodgates for outside money in politics and ballooned the amount of money spent on campaigns.

While Democrats have taken to criticizing the Citizens United case, many – including Clinton – have benefited from it. The ruling has allowed a cadre of former Clinton advisers and confidants to form Super PACs that are helping build a campaign infrastructure should the former secretary of state decide to run.

The response came after Clinton was asked about Congress' unpopularity and the standing of the legislative body.

Clinton suggested that voters don't give money to people who "tell you they will not compromise" because "it only encourages them."

Her response also came with advice: "Understand, that you can be a liberal, you can be a conservative, but you want to vote for someone who understand,s respects and cherishes the Democratic process. And that means they cannot believe that they have all the answers." . . .

Categories: External Articles

What Does the First-Ever Extradition on an Antitrust Charge Mean for the Auto Parts Investigation?


by Publius
Posted April 09, 2014, 11:32 AM

Jennifer Driscoll-Chippendale comments at Antitrust Law Blog:

On April 4, 2014, the U.S. Department of Justice, Antitrust Division announced a milestone victory, having successfully litigated its first extradition for an alleged antitrust violation.  Romano Pisciotti, an Italian national and former Parker ITS Srl executive, was extradited from Germany for his involvement with the marine hose cartel, almost seven years after the Division began its investigation with raids in Houston, Texas on May 2, 2007.  Pisciotti was arrested in Germany on June 17, 2013, and surrendered to the U.S. authorities under the terms of the U.S.-Germany extradition treaty, which provides for extradition where the alleged offense is punishable under both German and U.S. federal law.

Prior to Pisciotti’s case, in 2010, the Division won a protracted battle to extradite Ian Norris, formerly the Chief Executive Officer of Morgan Crucible, who was alleged to have fixed the prices of carbon products and concealed evidence relevant to the Division’s investigation.  In contrast to Pisciotti, Norris was turned over the U.S. authorities solely on the basis of the obstruction charge because price-fixing was not a crime in the United Kingdom during Norris’ alleged misconduct.  Another significant difference was Norris’ tortuous extradition process, which was heard at least once by all three English courts and spanned seven years.  In the end, Norris was sentenced to 18 months in prison, which he served at Rivers Correctional Institution until his release in November 2011.

As the Division continues its largest ever criminal investigation of the auto parts industry, Pisciotti’s case serves as a cautionary tale in several respects.  First, Japan should not be considered a “safe haven” for individuals seeking to avoid prison in the United States for obstruction of justice or criminal antitrust violations. The extradition treaty between the United States and Japan allows extradition for any offense that is listed in the treaty and is punishable by one year of incarceration in both countries.  Obstruction of justice is a basis for extradition under this “list approach.”  As a result, Japanese residents accused of obstructing justice in the auto parts investigation are easy targets under the express terms of the treaty. . . .

Categories: External Articles

Former NLRB Chair: NLRB Wants to Stop Businesses From Moving


by Publius
Posted April 09, 2014, 10:18 AM

Peter Schaumber, former chairm of National Labor Relations Board, comments at RealClearPolicy:

Richard Griffin, the new general counsel of the National Labor Relations Board, wants to give unions a veto over a unionized employer's decision to relocate. If Griffin has his way, and he most assuredly will, some unionized businesses will be pinned in place at the discretion of their unions.

The change Griffin is contemplating is unnecessary and inconsistent with both the law and the dynamics of our free-enterprise system. It will upset the balance mandated by the Supreme Court and should send a chill up the spine of unionized companies contemplating relocating an operation.

Griffin's intent was disclosed in a memorandum he sent the agency's regional directors ordering them not to act on cases presenting issues "of concern" to him -- and there were many such issues -- without receiving guidance from his office. Griffin's guidance will be to order an employer to be prosecuted not on the basis of what the law is but on the law as Griffin would like it to be. This will give the board an opportunity to change the law (though the change will be prospective -- the employer who is prosecuted will not be punished for violating the new rule).

Under current law, it is perfectly legal for a unionized employer to relocate some or all of its facilities and eliminate bargaining-unit work if the move is motivated by economic gain -- not by a desire to retaliate against employees for their union activities and support. A desire to escape the consequences of unionization, particularly high labor costs, is considered an independent, innocent motivation, not an unlawful one. Big Labor loathes this law; Griffin intends to help unions nullify it.

Under longstanding NLRB law, a unionized employer is not required to bargain with the union over a relocation decision that is motivated by labor-cost savings if the employer determines that bargaining would be futile -- that the union could not offer labor-cost savings that could change its decision. Unions can contest the employer's decision, but they have no right to participate in it or otherwise delay it absent a court order enjoining it.

Griffin intends to change this law by making bargaining mandatory. He will argue, as did a former board member whose views he cites, that mandatory bargaining is a modest change in the law that fulfills the National Labor Relations Act's central purpose of promoting collective bargaining. Why deprive the union of the opportunity to explore or influence an employer's relocation decision when labor costs, an area over which the union exercises some authority, are a motivating factor?

The question begets its answer: Because the goal of collective bargaining is labor peace. The board promotes collective bargaining not in the abstract but only when the subject of the proposed discussion is "amenable to resolution through the bargaining process" (as the board and the courts have put it). Requiring bargaining with the union over a work-relocation decision that will eliminate the union when one party to the bargaining process -- the party that has done the math -- knows that it will be futile, invites delay and conflict, not labor peace. One would have to be living on another planet not to know that the union will be tempted to abuse the bargaining process with endless requests for information, and even take the opportunity to foment workplace discord, to convince the employer to remain in place or simply to exact a price for its move. . . .

Categories: External Articles

Student Symposium Video: Balancing Privacy and Security


by Publius
Posted April 08, 2014, 4:53 PM

In an era where individuals increasingly entrust their data to third parties, how can the right balance be struck between the government’s need to collect information, and the individual’s right to privacy in that information? Does the Fourth Amendment adequately protect an individual’s rights in an era of rapidly advancing technology, or should Congress play a more active role in regulating this space? The University of Florida Law School FedSoc Chapter hosted this roundtable discussion at the 2014 Annual Student Symposium on Friday, March 7, 2014.

Introductory Remarks

  • Mr. Devon Westhill, Chairman, Symposium Executive Committee
  • Dean Robert H. Jerry II, University of Florida Levin College of Law


  • Mr. Steven G. Bradbury, Partner, Dechert LLP
  • Hon. Rachel L. Brand, Vice President & Chief Counsel for Regulatory Litigation, National Chamber Litigation Center, U.S. Chamber of Commerce; Member, Privacy & Civil Liberties Oversight Board
  • Mr. Julian Sanchez, Research Fellow, The Cato Institute
  • Prof. John Stinneford, Associate Professor of Law, University of Florida Levin College of Law
  • Mr. Ted Ullyot, Former General Counsel, Facebook
  • Moderator: Hon. William H. Pryor Jr., U.S. Court of Appeals, Eleventh Circuit

Ex-Blackwater Guard Wins Challenge of Manslaughter Indictment


by Publius
Posted April 08, 2014, 12:33 PM

BLT: The Blog of Legal Times reports:

A federal appeals court in Washington handed the U.S. Department of Justice a loss Monday in its revived prosecution of former private security guards charged with killing Iraqi civilians in 2007.

The U.S. Court of Appeals for the D.C. Circuit ruled a trial judge was wrong to allow the government to bring a new indictment against one of ex-Blackwater guards, Nicholas Slatten. The appeals court said a previous opinion from 2011 that allowed the government to renew its prosecution of other guards didn't apply to Slatten.

The ruling means prosecutors can't proceed with the current slate of manslaughter charges against Slatten. The five-year statute of limitations expired in 2012, according to court documents.

The government initially charged five ex-Blackwater guards in a shooting in Nisour Square in Baghdad that left 14 Iraqi civilians dead. U.S. District Judge Ricardo Urbina dismissed the entire prosecution in 2009, citing prosecutors' improper use of protected statements made by the guards. The D.C. Circuit reversed Urbina in 2011 and gave the government another chance to bring the case.

The government brought a new round of charges last year against four of the five guards originally indicted, including Slatten. Slatten's lawyers argued the D.C. Circuit's 2011 ruling didn’t apply to him, and petitioned the appeals court after U.S. District Senior Judge Royce Lamberth, the judge currently assigned to the case, sided with the government.

Prosecutors had acknowledged the original indictment against Slatten was tainted and moved to dismiss it. Urbina dismissed the entire case after finding prosecutors relied on protected statements, however, making the separate motion to dismiss Slatten's indictment moot. The government later argued that the D.C. Circuit's 2011 order reviving the case applied to Slatten because it involved the broader issues addressed in Urbina's opinion, regardless of problems specific to Slatten's indictment.

But the three-judge appellate panel said Monday that the court's 2011 decision "clearly applied only to Slatten's four co-defendants." Chief Judge Merrick Garland and senior judges Stephen Williams and Douglas Ginsburg jointly issued the order. . . .

Categories: External Articles

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.

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Judge Tosses Lawsuit over Drone Deaths of Americans


by Publius
Posted April 07, 2014, 6:12 PM

Josh Gerstein reports for Politico:

Representatives of three Americans killed in drone strikes in Yemen in 2011—including Al Qaeda in the Arabian Peninsula leader Anwar Al-Awlaki—cannot pursue a lawsuit alleging that the killings violated their constitutional rights, a federal judge ruled Friday.

U.S. District Court Judge Rosemary Collyer dismissed a suit brought on behalf of Al-Awlaki, his 16-year-old son Abdulrahman and alleged AQAP propagandist Samir Khan. Civil liberties groups filed the litigation on behalf of family members of the dead Americans, arguing that they were unconstitutionally deprived of life without due process of law and that the Obama Administration illegally maintained a so-called "kill list" of Americans targeted for death at the hands of U.S. government operations overseas.

"The persons holding the jobs of the named Defendants must be trusted and expected to act in accordance with the U.S. Constitution when they intentionally target a U.S. citizen abroad at the direction of the President and with the concurrence of Congress. They cannot be held personally responsible in monetary damages for conducting war," Collyer wrote.

In a flight of legal nuance, Collyer rejected the Obama Administration's arguments that she lacked authority to delve into the case because it presented a "political question" not suited to the courts. But she ultimately concluded that the elder Al-Awlaki's claim should not go forward because it would require the courts to recognize a new remedy for Americans killed in U.S. government action abroad and at least three appeals courts have indicated it is inadvisable for judges to allow claims of that sort without explicit authorization from Congress.

"In this delicate area of warmaking, national security, and foreign relations, the judiciary has an exceedingly limited role. This Court is not equipped to question, and does not make a finding concerning, Defendants’ actions in dealing with AQAP generally or Anwar Al-Aulaqi in particular," Collyer declared. "Its role is much more modest: only to ensure that the circumstances of the exercise of war powers against a specifically-targeted U.S. citizen overseas do not call for the recognition of a new area of Bivens relief," she added, referring to a line of cases discussing when courts should allow damage lawsuits against government officials.

In her 41-page ruling (posted here), Collyer expressed no sympathy whatsoever for the elder Al-Awlaki, whom she unequivocally branded as a nefarious Al Qaeda leader.

"Had he been captured alive, Anwar Al-Aulaqi might have been charged with treason....The fact is that Anwar Al-Aulaqi was an active and exceedingly dangerous enemy of the United States, irrespective of his distance, location, and citizenship," she wrote, tying him in particular to the attempted bombing of a Northwest Airlines fight headed to Detroit on Christmas Day in 2009. . . .

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