FedSoc Blog

According to Charlie Savage in The New York Times today, a taskforce organized by the Obama Administration, including officials in law enforcement and counterterrorism, is pushing for new legislation increasing penalties and other incentives aimed at phone and broadband carriers to ensure their compliance with the federal government's ability to wiretap new technology. While current federal law requires carriers to maintain networks that can be wiretapped, the officials say that recent upgrades in technology have caused problems for the companies in complying with surveillance orders.

Telecommunications firms appear likely to object to the changes, as some say more far-reaching legislation will slow down innovation within the industry. Possible proposals to provide incentives for these firms to cooperate include financial penalties for technical problems with surveillance and rewarding firms with safe harbor from any penalties if they reveal systems to the F.B.I. before they are deployed.

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With Chief Justice George’s imminent retirement and replacement by California Court of Appeal Justice Tani Cantil-Sakauye, and the high likelihood that the Governor who is elected this November may have the ability to appoint a majority of the court during his or her term in office, this is a unique opportunity to consider the work, impact, and role of the California Supreme Court.

Click here to read a new white paper by Jeremy B. Rosen and Tom Gede, published by the Federalist Society, that highlights a few important areas of law (consumer class actions, property rights, arbitration, commercial speech, and employment) where the court has been strongly divided in recent years. In those areas of great importance to California's businesses, workers and consumers, changes in the court's personnel could result in changes in the law that push the court away from its current balance.

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Listen to the audio here.

On Oct. 5, the Supreme Court heard oral argument in NASA v. Nelson, in which the Court considers whether a prospective federal government contract employee is protected by a constitutional right of informational privacy from having the government ask, in the course of a background investigation, whether the prospective employee has received counseling or treatment for illegal drug use that has occurred in the past year or from asking the prospective employee’s designated references for any adverse information that may have a bearing on the employee’s suitability for employment at a federal facility.

In this post-argument edition of SCOTUScast, Prof. Richard J. Peltz of the University of Arkansas at Little Rock William H. Bowen School of Law discusses the case.

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In recent races for the Supreme Court of Alabama, the subject of “judicial activism” and the Alabama Supreme Court’s rulings in favor of oil companies and drug companies have attracted significant attention. Some have criticized the Court’s rulings in the state’s cases against oil companies and drug companies as outcome-oriented decisions by judges interested in currying favor with large corporations. Others maintain that the majority of the Court was merely fulfilling its obligation to apply the law as written, regardless of the identity of the parties to the case.

Click here to read a new white paper by Jack J. Park, Jr., and published by the Federalist Society, that will examine the accusations of favoritism against the Alabama Supreme Court since 1994, and put its decisions in their legal context.

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On Sept. 28, at the Washington Athletic Club in Seattle, Washington, candidates for the Washington State Supreme Court answered questions from a panel of experts and the audience regarding judicial philosophy, the role of the courts, and current issues facing Washington State. Hon. Richard Sanders and Mr. Charlie Wiggins answered the questions, while Mr. Peter Callaghan of the Tacoma News Tribune, Prof. David DeWolf of Gonzaga University School of Law, and Prof. Stewart Jay of the University of Washington School of Law posed questions to the panelists.

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Judge Roger Vinson of the Northern District of Florida became the second judge to reject the United States' motion to dismiss a challenge to key provisions of the health care reform legislation. Like Judge Hudson of the Eastern District of Virginia (and unlike Judge Steeh of the Eastern District of Michigan, who granted a motion to dismiss), Judge Vinson ruled that the claim that the individual mandate exceeds Congress's powers under the commerce clause and the necessary and proper clause was at a minimum plausible. Pointing to language from the Congressional Budget Office and Congressional Research Service noting the novelty of a Congressional requirement by Congress that individuals purchase a particular good or service, Judge Vinson noted: "While the novel and unprecedented nature of the individual mandate does not automatically render it unconstitutional, there is perhaps a presumption that it is. In Printz, the Supreme Court stated several times that an 'absence of power' to do something could be inferred because Congress had never made an attempt to exercise that power before." Judge Vinson also rejected the argument that the mandate with its accompanying penalty should be understood to be a tax and is a permissible exercise of Congress's taxing power, noting that both the President and Congress went way out of their way to make sure it was not characterized as a tax. Finally Judge Vinson also ruled that a challenge arguing that the new costs the States would incur under the revisions to Medicaid were effectively compulsory and hence violate the Tenth Amendment also could go forward.

Next up: summary judgment hearings. The one in Virginia will take place October 18, the one in Florida on December 16.

Dana Milbank has an op-ed in The Washington Post today about the Supreme Court's hearing of the case Harrington v. Richter (click for the argument preview on SCOTUSblog) on Tuesday. At issue in the case is whether a "blood pool" discovered at the crime scene belonged to a murder victim, and, according to Milbank, the Supreme Court Justices spent a great deal of time discussing the forensic details of the case, including blood splatter patterns and hypotheses about how the alleged killer might have moved the victim.

AP reports that U.S. District Judge Virginia Phillips of the Central District of California has ordered an injunction on the military's "don't ask, don't tell" policy, which bans openly gay troops from serving. Judge Phillips held that the rule violates servicemembers' rights to due process and freedom of speech, along with their right to petition the government for redress of grievances under the Federal Constitution. Veteran plaintiff Alexander Nicholson and the Log Cabin Republicans brought the suit, and the U.S. Department of Justice has sixty days to appeal the ruling, if it chooses to do so.

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John Morrall, Richard Williams, and Todd Zywicki have an article on Reuters' The Great Debate discussing the Consumer Financial Protection Bureau, a new agency created by the financial reform legislation passed earlier this year. They conclude that the entity lacks accountability and is not required to analyze the effects of its actions, thus making it more likely that it will produce negative effects on the economy and jobs. They suggest that the agencies involved in the legislation adopt standards requiring such analysis or that the President require this through Executive Order.

On the other side, Katrina vanden Heuvel writes in The Washington Post today that GOP attempts to pass legislation altering the Bureau or reducing its funding should be stopped, and that those in Congress who supported the Dodd-Frank financial reform bill must "reinvigorate [their] effort to create a truly strong and independent agency."

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On Wednesday, the Supreme Court heard Connick v. Thompson, in which they are to decide whether former New Orleans District Attorney Harry Connick's office should be held liable for failing to disclose exculpatory evidence to the defense prior to trial, and Tony Mauro at the National Law Journal seems to believe, based on oral argument in the case, that the Justices are poised to permit liability.

The plaintiff in the case was placed in prison for twenty-two years and scheduled to be executed before his attorneys discovered that the prosecutor's office was holding exculpatory blood evidence that they failed to turn over to the defense. He is now suing for prosecutorial conduct, despite the general rule that prosecutors have immunity from being sued over the cases they bring in court.

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Responding to an article in The New York Times by Kate Zernike defining "the rule of law," as discussed by Friedrich Hayek in his book Road to Serfdom, as "the unwritten code that prohibits the government from interfering with the pursuit of 'personal ends and desires,'" The Economist has an article arguing that Hayek's actual concept of "the rule of law" involves fixed and announced rules that bind the government from taking arbitrary actions.

The article agrees with the assessment made by Ron Johnson, the Wisconsin Republican nominee for U.S. Senate, who, in a recent speech, argued that the escrow fund that the Obama Administration has forced BP to create after the oil spill in the Gulf is an example of arbitrary government action contrary to the rule of law.

Gallup reports that the U.S. Supreme Court has a 51% approval rating among Americans, which is lower than the 61% approval it garnered a year ago. This approval rating is among the lowest in the past decade, and it is boosted mostly by Democrats, 61% of whom approved of the Supreme Court's handling of its job in the poll, whereas only 42% of Republicans and 50% of independents approved.

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The U.S. Supreme Court heard oral arguments today in Snyder v. Phelps (click for an overview of the case on SCOTUSblog), in which the Court is considering whether a family of a fallen soldier may sue protesters who targeted the soldier's funeral for intentional infliction of emotional distress. Robert Barnes of The Washington Post provides an overview of the arguments.

Benjamin Weiser of The New York Times reports today that just before the beginning of Ahmed Khalfan Ghailani's trial in federal district court for conspiring in al Qaeda's 1998 bombings of American embassies, Judge Lewis A. Kaplan ruled that prosecutors could not use a key witness in the case because the government learned of the witness's identity through coerced statements from Ghailani while he was in C.I.A. custody. Ghailani was the first Guantanamo detainee moved to the civilian courts for trial.

The judge's ruling comes the day after Faisal Shahzad, the Pakistani-born U.S. citizen who attempted (and failed) to explode a car bomb in Times Square, was sentenced to life imprisonment in a civilian federal court following his guilty plea in June to a ten-count indictment, which included charges of attempting an act of terrorism and conspiracy to use a weapon of mass destruction, reports The Wall Street Journal.

Margaret Stock has a new paper for the Federalist Society's New Federal Initiatives Project entitled "The Federal Government Responds to Arizona's Enforcement of Federal Immigration Law." The paper surveys the recently-enacted Arizona immigration law and the federal government's attempts to persuade the courts to strike it down. Click here to read the paper. Click here to view other NFIP papers published by the Federalist Society.

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