FedSoc Blog

On Monday, U.S. District Judge Royce C. Lamberth of the District of Columbia issued a preliminary injunction prohibiting the National institutes of Health from funding human embryonic stem cell research, reports The Washington Post. Judge Lamberth ruled that such funding, made possible under the Obama Administration's new stem cell research guidelines, would violate the 1996 Dickey-Wicker Amendment, legislation which prevents the federal government from providing financial support to experiments in which human embryos are destroyed.

Click here to read more on embryonic stem cell research in a paper by O. Carter Snead for the Federalist Society's New Federal Initiatives Project.

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David G. Savage reports in the LA Times that bloggers have been subject to an expanding number of lawsuits from plaintiffs claiming they have been injured or were threatened by the bloggers' posts. These bloggers face legal problems ranging from civil litigation over allegedly false and defamatory information posted on the blogs to criminal prosecution for allegedly threatening the subjects of the posts. The latter category includes Hal Turner, a New Jersey blogger who may receive up to 10 years in prison for writing that some Chicago judges "deserve to be killed" for a decision on the Chicago handgun ban last year. Anonymous and identified posters alike are at risk for posting comments that are false and may injure a person's reputation.

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Sheri Qualters from the National Law Journal reports that Marler Clark, a law firm for food illness plaintiffs, has brought the first lawsuit in relation to a salmonella outbreak that caused a nationwide recall of eggs. Bill Marler, managing partner of Marler Clark, states that his firm has around 30 potential cases that seem to be related to the recall. The firm filed the suit against Baker Street Restaurant and Pub, where potential plaintiffs claimed they consumed the food that caused their illness, and Wright County Egg, an Iowa egg producer.

Click here for coverage on The Wall Street Journal Law Blog, and here for coverage in USA Today, which reports that it is likely that 1,300 people became ill as a result of the salmonella outbreak.

Jason Mazzone has a post on Balkinization today discussing Justice Stevens' dissenting opinion in the Supreme Court's McDonald v. Chicago decision, where the Court held that the 14th Amendment's Due Process Clause makes the 2nd Amendment right to keep arms for self-defense applicable against the states. Justice Stevens argued that the 14th Amendment may apply to the states differently from how the 2nd Amendment applies to the federal government and that, therefore, states might have more leeway in regulating gun rights.

Mazzone concludes that Justices Alito and Scalia, each of whom wrote opinions in the case criticizing this view of Justice Stevens, which they say would hold 2nd Amendment rights to a different standard from other provisions in the Bill of Rights, mischaracterized Justice Stevens' argument over the importance of federalism.

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David Bernstein points out in a post on Volokh Conspiracy that, in the current cases dealing with the recently-passed health care law, courts will have to decide how much deference to give to Congress's determination that the law was within its constitutional powers. He then argues that members of Congress and the Administration may not have seriously engaged the idea that the individual mandate was unconstitutional and that, therefore, courts might refuse to grant a large amount of deference to their decision to pass the law.

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The U.S. Department of Justice and the parties represented by Gay & Lesbian Advocates & Defenders (GLAD) agreed Wednesday to a stay of U.S. District Judge Joseph Tauro's ruling last month in Gill v. Office of Personnel Management, where Judge Tauro held that a section of the federal Defense of Marriage Act, which allows states not to recognize same-sex marriages that are recognized in other states, is unconstitutional under the equal protection principles in the Fifth Amendment's Due Process Clause, reports Marcia Coyle from The National Law Journal. The stay would continue pending any appeal from the federal government.

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The Sacramento Lawyers Chapter is hosting former Attorney General Michael Mukasey to speak on the topic "The War on Terror: Where We Are and How We Got There" on September 13, 2010. The event begins at 12 pm and will be held at the California Chamber of Commerce. Click here for more details.

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The New York Times has an interesting article today about young lawyers who have been deferred from their law firms and who, instead of returning to their firms after the deferral ends, decide to stay at their jobs in public service. Despite the large gap between the salaries of public interest attorneys and attorneys at large law firms, the lawyers interviewed in the article cite such factors as their work environment and the ability to be published as reasons why they chose public interest law.

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Today, a Tenth Circuit Court of Appeals panel ruled that the Utah Highway Patrol's practice of setting up roadside crosses memorializing fallen troopers violates the Constitution's Establishment Clause. The panel relied on the Supreme Court's "endorsement" test, under which the court determines whether a reasonable observer would believe that the government's practice was endorsing a particular religion, arguing that the crosses could lead observers to believe that the highway patrol would give Christians preferential treatment.

Eugene Volokh writes on Volokh Conspiracy that while it appears five of the nine Supreme Court Justices disapprove of the endorsement test, and thus it may seem likely that the Court will take the case, Justice Scalia may actually be inclined to invalidate the highway patrol's policy based on arguments he made in his opinion in McCreary County v. ACLU (2005). Click here for further coverage on The Wall Street Journal Law Blog.

Listen to the audio here.

On June 10, the Supreme Court announced its decision in Morrison v. National Australia Bank. The Court held that §10(b) of the Securities and Exchange Act does not provide a cause of action to foreign plaintiffs suing foreign and American defendants for misconduct in connection with securities traded on foreign exchanges. To discuss the case, we have Hofstra University School of Law Associate Professor Ronald J. Colombo.

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Ilya Somin has a post on Volokh Conspiracy today arguing that the U.S. Constitution does not mandate the Supreme Court's current standing jurisprudence, though Congress can restrict or totally defeat standing through statute. The post deals with both constitutional and policy arguments involving restrictions on standing.

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A man in Florida was arrested for violating a protective order by sending his wife (soon to be ex-wife) two requests to be friends on the social networking site Facebook, reports FoxNews.com. The 54-year-old man admitted to sending the friend requests and to changing his wife's e-mail password. He is now in jail on a $5,000 bond.

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As Sheri Qualters reported in The National Law Journal yesterday, the U.S. Court of Appeals for the Federal Circuit ruled that the Foundation of Human Understanding, a religious organization which primarily conducts its worship services over the radio and Internet, does not meet the definition of "church" under the U.S. Internal Revenue Code. The court based its ruling on court precedents that relied upon an associational test, defining a church as "an organization whose members meet regularly for organized worship," and on IRS criteria for deciding whether an organization is a church.

The ruling did not address whether groups that provide Internet chat rooms and other means of communication among worshippers would meet the associational test. Under its new classification, the Foundation must file more paperwork and is subject to greater scrutiny by the IRS.

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Bob Egelko has an article today in the San Francisco Chronicle discussing the Supreme Court's ruling in 1997 in the case Arizonans for Official English v. Arizona, in which the Court held that it had "grave doubts" about the standing of ballot measure sponsors to defend the measure in federal court, and how the precedent could derail the argument by Proposition 8 backers that they have standing to appeal the federal district court's same-sex marriage ruling. Professor Jane Schachter of Stanford Law School opines that this ruling may not cause the Ninth Circuit panel hearing the case to deny that petitioners have standing, and that the sponsors should argue that California officials should not be allowed to undermine state law by refusing to defend it. The Wall Street Journal Law Blog also has coverage of this issue here.

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Charlie Savage published a story over the weekend in The New York Times pointing out that the recent D.C. Circuit panel holding that warrantless tracking of a suspect's vehicle over a period of weeks with a GPS device is unconstitutional creates a split among the circuits. Appellate panels in Chicago, St. Louis, and San Francisco have ruled that such tracking does not require a warrant under the 4th Amendment. Orin Kerr followed up the D.C. Circuit panel's ruling with a post on Volokh Conspiracy arguing that the decision's "mosaic" theory, recognizing that certain law enforcement steps that would not be searches individually may become searches when considered collectively, is not convincing.