FedSoc Blog

The Blog of Legal Times reports that President Obama nominated New York lawyer Caitlin Halligan today to the U.S. Court of Appeals for the D.C. Circuit, marking the President's first nomination to this court. Halligan was solicitor general for New York State under then-Attorney General Eliot Spitzer, then worked in private appellate practice at Weil, Gotshal & Manges, and is now General Counsel for the New York County District Attorney's Office. Click here to see Wednesday's White House press release on the nomination.

A new eminent domain case testing the bounds of Kelo v. City of New London may be on its way to the U.S. Supreme Court. Plaintiffs have filed a petition for the Supreme Court to hear the case Tuck-It-Away, Inc. v. New York State Urban Development Corp. to challenge the New York Court of Appeals' ruling in June that the state's use of its eminent domain power to acquire property for an expansion of Columbia University's campus had a "civic purpose" and therefore was valid under the U.S. Constitution.

Damon W. Root posted an article yesterday on Reason.com criticizing the New York high court's decision in the case and urging Justice Anthony Kennedy, who wrote in his tie-breaking opinion in Kelo that "(t)ransfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause," to stick to this formulation of constitutional doctrine and thus find that New York had overstepped its bounds.

Sen. Patrick Leahy has introduced into the Senate a bill that would allow a retired U.S. Supreme Court Justice to replace a sitting Justice who has recused from a case, reports The Blog of Legal Times. The proposal would potentially limit the number of 4-4 ties when a Justice recuses.

Click here to view this article on the source site »

The New York Times published an editorial today criticizing state judicial elections, claiming that they represent a "threat to public confidence in judicial neutrality that is fundamental to the justice system." This editorial comes on the heels of a report from the American Justice Partnership alleging that there is a massive liberal campaign to do away with such judicial elections that is funded largely by George Soros. Click here to view the previous FedSoc Blog post on this report.

Josh Gerstein reports on Politico that the ABA has provoked controversy by taking stands on the issues of gay marriage and immigration laws. At its annual meeting in August, the ABA passed a formal resolution encouraging every state to pass laws allowing same-sex marriage, and in June the ABA filed a brief in federal court supporting the legal challenge to the Arizona law requiring that immigrants carry their registration documents at all times and allowing the police to question people about their immigration status while enforcing another law.

Critics of these moves argue that the ABA is risking its reputation by taking stands on issues that divide Americans and that people who come down on the opposite side of these issues will find it harder to trust the organization on other matters. The new president of the ABA, Stephen Zack, counters: "It has always been our position that we have an obligation to speak out on legal issues that really go to the fundamental legal issues of due process, equal rights or preemption."

For more on the ABA's stance on gay marriage and other issues that arose at the organization's annual meeting in August 2010, click here, here, and here to read the most recent editions of the Federalist Society's Bar Watch Bulletin. Click here to read the August 2010 edition of the Federalist Society's ABA Watch.

The 2010 Supreme Court Term, which begins October 4th, will include interesting cases concerning the Free Speech Clause, the Establishment Clause, privacy, preemption, arbitration, copyright, and more. On Wednesday, September 29, at 12:00 PM, a group of distinguished panelists will gather at the National Press Club for the Federalist Society's Supreme Court Preview to discuss these cases and how the addition of former Solicitor General Kagan may affect the Court.

The panel will be comprised of Paul D. Clement of King & Spalding LLP, Adam Liptak of The New York Times, Prof. Jeffrey Rosen of George Washington University Law School, Kannon K. Shanmugam of Williams & Connolly LLP, and Kenneth L. Wainstein of O'Melveny & Myers LLP.

Click here to register for the event and to see more details.

The Daily Telegraph reports that the Superior Court of Paris has convicted Google of the "public slandering of a private individual" after the search engine's "suggest" function linked a French man's name to the words "rapist," "satanist," "rape," and "prison." The man had been convicted of the corruption of a minor and was appealing his conviction in the French court system when he discovered that Google had linked his name to these words.

According to the article, Google plans an appeal and will argue that the "suggest" function merely shows the most common terms entered by users and that Google itself is not suggesting these terms. This suit occurs while the company is involved in legal challenges around the globe, including copyright and privacy disputes.

Click here to view this article on the source site »

Listen to the audio here.

Prof. Thomas D. Morgan of George Washington University Law School recently wrote a book, The Vanishing American Lawyer, which examines the future of the legal profession. In this Federalist Society Practice Groups Podcast, Prof. Morgan and Mr. Anthony E. Davis of Hinshaw & Culbertson LLP discuss the way new technologies, the automation of assorted legal transactions, and the demand for affordable routine legal services are revolutionizing the legal profession. Mr. W. William Hodes of The William Hodes Professional Corporation moderates.

Click here to view this article on the source site »

Charlie Savage reports today in The New York Times that federal officials in the Obama Administration are developing legislation, which they will submit to Congress next year, requiring all communications services, including those that operate on the Internet, to be capable of being wiretapped, as suspects in criminal and terrorism investigations are increasingly turning from telephone to online communications. Such legislation also would require services that create devices using encrypted messages to be capable of unscrambling these messages.

Federal officials argue that such authority is necessary to keep federal investigations from becoming obsolete in the digital age and that the proposals merely maintain the government's ability to intercept communications among criminal and terrorist suspects. Critics claim that requiring such services to be technically capable of being intercepted would require loopholes that would be exploited by hackers and that these proposals may lead to the stalling of innovation in the technology industry.

Click here to view this article on the source site »

The Senate Judiciary Committee is holding a hearing tomorrow at 10:00 AM on "Restoring Key Tools to Combat Fraud and Corruption After the Supreme Court's Skilling Decision." Then, at 3:00 PM, the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security has a hearing entitled "Reining in Overcriminalization: Assessing the Problems, Proposing Solutions."

James R. Copland's post today on PointofLaw.com points out that these congressional hearings appear to be looking at opposite sides of the overcriminalization issue, with the Senate hearing analyzing how to make it easier for the federal government to prosecute fraud cases and the House hearing looking more generally at how to rein in federal prosecutions.

Christopher Coates, a former voting section chief for the U.S. Department of Justice who was transferred to the South Carolina U.S. attorney's office last year, testified today before the U.S. Commission on Civil Rights about DOJ's alleged mishandling of a voter intimidation case against the New Black Panther Party, reports The Washington Post. Coates stated in his testimony that DOJ had "irrational reasons" for narrowing lawsuits filed against the Party over two members who wore military gear and remained outside a polling place in Philadelphia during Election Day in 2008 while allegedly discouraging some would-be voters from entering.

The Civil Rights Commission is investigating DOJ's decision to drop the case against the New Black Panther Party and one of the members, only focusing its investigation on the member who could be seen in recordings of the incident carrying a nightstick. DOJ maintains that it did not have enough evidence to carry out a case against the other defendants and that Coates is not "an appropriate witness to discuss the Civil Rights Division's current enforcement policies."

Click here to view this article on the source site »

The Blog of Legal Times reports that the Senate Judiciary Committee voted along party lines Thursday to send the nomination of Goodwin Liu, a professor at the University of California, Berkeley School of Law, who was nominated by President Obama to the U.S. 9th Circuit Court of Appeals, to the full Senate for consideration. The Committee also voted, mostly along party lines, to advance three district court nominees: Louis Butler Jr., Edward Chen, and John McConnell Jr.

Senate Republicans have indicated that they may filibuster Liu in the full Senate. The Judiciary Committee had already advanced all four of the nominees, but in August the Republicans forced the nominations to be returned to the White House.

Click here to view this article on the source site »

The Washington Legal Foundation has a new article by Konrad L. Cailteux and Jeremy T. Grabill of Weil, Gotshal & Manges LLP on the U.S. Court of Appeals for the 2nd Circuit's ruling last week that the 221-year-old Alien Tort Statute ("ATS") does not provide courts with subject matter jurisdiction to hear claims against corporations.

Over the course of the last twenty years, Cailteux and Grabill write, courts have assumed that they have such jurisdiction. However, six years after the U.S. Supreme Court included in its decision of Sosa v. Alvarez-Machain a statement that courts should look to customary international law to determine liability under ATS, the 2nd Circuit held that corporate liability is not a norm of customary international law and thus that the ATS does not provide for a cause of action against corporations.

Click here to view this article on the source site »

Josh Blackman previews on his blog a new article from Randy Barnett posted on SSRN and that is forthcoming in the NYU Journal of Law & Liberty on the constitutionality of the individual health insurance mandate. In the article, Barnett analyzes the mandate under existing precedent dealing with the Commerce and Necessary and Proper Clauses and Congress's tax power, rather than originalist principles, and concludes that such precedent should guide the Supreme Court to strike down the law.

One of the arguments Barnett makes in the course of his article is that the individual mandate should be struck down because it "commandeers" individuals to engage in economic activity. Barnett argues that since Congress is not permitted to commandeer states to engage in such activities under the Supreme Court's decision in Printz v. United States, it cannot be allowed to mandate that individuals do so. The federal government can only mandate that citizens act, according to Barnett, when such action involves their "fundamental duties as citizens of the United States, such as the duty to defend the country or to pay for its operation."

In the wake of Governor Chris Christie’s decision not to reappoint Justice John E. Wallace, Jr., to the New Jersey Supreme Court, the President of the State Senate has refused to hold hearings on the nomination of Anne M. Patterson. A new Federalist Society white paper by Prof. Earl M. Maltz of Rutgers School of Law - Camden addresses the constitutional issues that would be raised by a decision by Chief Justice Rabner to temporarily assign someone to fill the seat until Justice Wallace's replacement has been confirmed. Click here to read now!

Click here to view this article on the source site »