FedSoc Blog

The New York Times carried an article by Adam Liptak this past weekend arguing, based on four sets of political science data, that the Supreme Court under Chief Justice Roberts has become the most conservative Court in decades. Liptak identifies President Bush's appointment of Justice Alito to replace Justice O'Connor, thrusting Justice Kennedy to the center of the Court, as the point at which the Court shifted firmly to the right. Ed Whelan has posted a rebuttal to the article on National Review Online's Bench Memos, claiming that the Court's positions have not changed appreciably and that the Court is only as "conservative" as Justice Kennedy, who has ruled with the left on issues like abortion, gay rights, and the death penalty. Matthew J. Franck also addresses the article in a post on Bench Memos, arguing that the methods used in determining whether the Supreme Court has moved right are not meaningful and do not take into account many important factors.

The National Association for Law Placement released a report last week indicating a "bimodal" pay distribution for recent graduates of law school: while those who receive jobs at large firms generally receive around $160,000 per year, most others receive under $75,000 per year. Prof. Ilya Somin posted an argument on Volokh Conspiracy yesterday that concerns about lawyer pay are overblown, that lawyers still earn "impressive" salaries, and that this report should not contribute to some lawyers' claims that entrance into the legal profession should be further restricted. On Above the Law, Elie Mystal argues that the data means young people who wish to be lawyers should temper their expectations as to salary.

Peter Slevin at The Washington Post reports today that the Obama Administration expects to deport 400,000 illegal immigrants this fiscal year, a 10 percent increase over the Bush Administration's deportation of aliens in 2008, and a 25 percent increase over deportation in 2007. The Obama Administration has also quadrupled company audits since the final year of the Bush presidency. In a June 30 memorandum, the Director of Immigration and Customs Enforcement John Morton directed officers to focus their attention primarily on felons and repeat criminals, and, as the article points out, almost 50 percent of the people deported in the past budget year have been convicted of a crime. Slevin writes that the increased enforcement serves in part as enticement for Republicans in Congress to agree to comprehensive reform of U.S. immigration laws in the future.

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James Taranto posted an interview with Professor Randy Barnett of Georgetown University Law Center Friday on the constitutionality of the individual mandate and the likelihood that it will be upheld by the U.S. Supreme Court. In the interview, Prof. Barnett evaluates the strength of several different arguments for and against the mandate's validity and characterizes the mandate as a "commandeering of the people" with little, if any, precedent.

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Listen to the audio here.

On March 31, the Supreme Court announced its decision in Padilla v. Commonwealth of Kentucky. The Court held that the Sixth Amendment requires a lawyer to inform a client whether his plea carries a risk of deportation. To discuss the case, we have United States Military Academy at West Point Department of Social Sciences Professor Margaret D. Stock in this post-decision edition of SCOTUScast.

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A recent study by researchers at the University of California Berkeley School of Law appears to show that law schools are hiring more professors who are openly liberal than professors who are openly conservative, reports Karen Sloan at Law.com. The study was originally aimed at determining whether identifiable political leanings of professors affected the prestige of the institutions that hired these professors, but, along the way, the researchers discovered that, of the 149 law professors they sampled who were hired in three different years, 60 strongly signaled political leanings, and 52 of these professors were liberal and only 8 conservative. The sample is small, and the researchers did not look at who applied for jobs and was not hired. Though the researchers do not have an explanation for the cause of the hiring disparity, they argue that the results indicate a problem in any event. According to the study, the researchers plan to increase the sample to 1,000 by the time of the Empirical Legal Studies Conference at Yale on November 5-6. Click here to read the study. Click here for the Wall Street Journal Law Blog's coverage of the story.

Listen to the audio here.

On March 30, the Supreme Court announced its decision in Jones v. Harris Associates. The Court ruled that to be held liable under Section 36(b), an investment adviser must charge a fee that is so disproportionately large that it bears no reasonable relationship to the services rendered and could not have been the product of arm's length bargaining. George Mason University School of Law Professor D. Bruce Johnsen discusses the case in this post-decision edition of SCOTUScast.

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Randy Barnett has a post on Volokh Conspiracy noting that Obama Administration officials now appear to be shifting tactics on the individual insurance mandate, claiming that the "linchpin" of their case to uphold the constitutionality of the mandate is the argument that it falls under Congress's Tax Power. Barnett argues that this shows the Commerce Clause argument was not "frivolous," as some have suggested, and that the shift is problematic because, as the New York Times has reported, Congress nowhere cited its Tax Power as a source of its authority in the legislation and instead relied on its power to regulate commerce. Additionally, this post from David Kopel on Volokh Conspiracy in March details Kopel's view that Congress's Tax Power has a limit, and this limit falls short of punishing people for choosing not to buy something like health insurance. Finally, on Balkinization, Jack Balkin uses the constitutional text and Supreme Court jurisprudence to argue that the individual mandate is within Congress's Tax Power and that opponents of the mandate have a difficult road ahead to have the courts strike it down.

Professor Barnett, Professor Balkin, and Mr. Kopel will all be participating, along with Professor Gillian Metzger, on the Federalist Society's panel on the individual health care mandate on August 5, 2010, at the annual meeting of the Southeastern Association of Law Schools (SEALS). For more information, click here.

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The Wall Street Journal published an op-ed today arguing against passage of Senator Harry Reid's energy bill, which may come to the Senate floor as early as Monday. For a discussion of the potential effects of cap and trade on the economy, take a look at "Cap and Trade: Implications for the Housing Industry," a paper by Timothy Harris and Benjamin Ingram for the Federalist Society's New Federal Initatives Project.

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The Hill's Congress Blog has posted Senator Lindsey Graham's statement from the Senate Judiciary Committee confirmation hearing explaining his vote for Elena Kagan and his deference to the executive branch. On NRO Bench Memos, Ed Whelan, responding to Dana Milbank's praise of Sen. Graham in The Washington Post Wednesday, argues that Sen. Graham's position on Kagan is not constitutionally compelled and that Sen. Graham's vote will not influence any votes from Democrats on nominees of Republican Presidents in the future.

Meanwhile, Senator Dick Lugar of Indiana has announced that he will be voting to confirm Kagan, thus becoming the second Republican Senator to announce his approval of the nomination.

For more on the Kagan nomination and the confirmation process, go to SCOTUSreport.com and check out its special feature, the Kagan Vote Tracker, which tracks the Senators who have announced whether or not they will support Kagan's confirmation.

At The Huffington Post, Tim Siedell argues that the federal government should take some unconventional measures to cut costs, including avoiding some unnecessary expenses at the Supreme Court.

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Part 2 of the Boston Lawyers Chapter's presentation of "Shakespeare's Henry V and the Law and War" is featured above.

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Now in its tenth year, the Boston Lawyers Chapter of the Federalist Society presented, as part of its Shakespeare and the Law series, a staged reading of Henry V, followed by a panel discussion of the law and war -- including the role of patriotism, the treatment of enemy combatants, the trial of foreign terrorists, and the use of torture. The event was hosted by Andrew H. Card Jr., former White House Chief of Staff, and featured a number of attorneys, professors, and judges (the list of participants is available here). The event was co-sponsored by the Massachusetts Bar Association.

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At the annual meeting of the Southeastern Association of Law Schools (SEALS) in Palm Beach, Florida, the Faculty Division will be hosting a reception for faculty attendees on the evening of Tuesday, August 3, at 7:00 pm. Registration for the SEALS meeting is available here.

Today, President Obama signed into law the Dodd-Frank financial overhaul bill, which, according to The Washington Post, "places broad new authority in the hands of federal watchdogs in an effort to prevent a recurrence of the financial crisis that erupted nearly two years ago." President Obama pledged that, as a result of the new law, there would be no more "taxpayer-funded bailouts, period."

Click here to see a description of the provisions of the Senate version of the bill by John Shu for the Federalist Society's New Federal Initatives Project. Click here to see Roger Clegg's NFIP paper on the bill's use of racial, ethnic, and gender classifications.