FedSoc Blog

Ashby Jones reports on the Wall Street Journal Law Blog that the House passed a bill Wednesday that would stop the federal government from trying Khalid Sheikh Mohammed, the self-proclaimed mastermind behind the attacks of September 11, 2001, and other detainees from Guantanamo Bay in U.S. criminal courts. The Senate has not acted on the legislation.

If the bill passes the Senate, Jones says that this will result in a "fatal blow" for President Obama's decision to close the prison at Guantanamo Bay. The legislation may have been a response to last month's trial of Ahmed Ghailani, who was only found guilty on one charge out of the hundreds of charges for which he was tried for his connections to two U.S. embassy attacks in 1998.

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The Hill's Hillicon Valley Blog reports that, on Monday, Rep. Joe Barton criticized a proposal by FCC Commissioner Michael Copps last week supporting new regulations to increase diversity in news broadcasts.

Copps suggested in a speech that, every four years, the government subject broadcasters to a "public values test." If the broadcasters did not pass this test, they would not receive a renewal on their broadcaster's license.

According to Sara Jerome at The Hill, Copps argued that the federal government require outlets to do as follows:

prove they have made a meaningful commitment to public affairs and news programming, prove they are committed to diversity programming (for instance, by showing that they depict women and minorities), report more to the government about which shows they plan to air, require greater disclosure about who funds political ads and devote 25 percent of their prime-time coverage to local news.

Rep. Barton, in a letter to Copps, wrote, "I hope ... that you do not mean to suggest that it is the job of the federal government, through the (FCC), to determine the content that is available for Americans to consume." Barton likened Copps' proposal to the Fairness Doctrine, which required outlets to broadcast "balanced" coverage.

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The Blog of Legal Times reports that the U.S. Capitol Police arrested a man for wearing a congressional lapel pin on the street, close to the Capitol.

The police received a call about an assault on a congressman and, when they arrived at the scene, found a man who said his name was Jack Kingston, congressman from Georgia. The man was not carrying ID, but he was wearing a lapel pin issued to members of Congress to bypass security when entering a congressional building.

Police discovered that the man, whose actual name was Walter N. Lewis Jr., was merely pretending to be a congressman and arrested him. He was charged with possession of a congressional lapel pin and later released prior to trial. According to Legal Times, "(u)nlawful possession of a United States badge carries a maximum six-month sentence and the potential for a fine."

A federal prosecutor in the U.S. Attorney's Office's Violent Crimes and Narcotics Section requested a summons from a judge requiring that Lewis appear before the U.S. District Court for the District of Columbia for the infraction.

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David Weigel has a story on Slate about the post-election meeting of the American Legislative Exchange Council (ALEC) in Washington, D.C., where the group seeks to educate state legislators about how to resist federal regulations from the Obama Administration and defeat mandates from the federal government. Among the speakers was Georgetown law professor Randy Barnett, who spoke on the states' Article Five option to call a convention to propose constitutional amendments.

According to Barnett, the fact that the states have never called such a convention is not because it is impossible to do so but merely because the states have never been as exposed to overstepping by the federal government as they are today. He likened the states' use of the Article Five power to the citizens' right to keep and bear arms under the Second Amendment:

Are we living in a really happy, tranquil time where everything is going pretty well and we don't want to rock the boat, and therefore we don't want to pick up our guns? ... Or are we living in a different time in which the federal government is coming at us with its constitutional powers as interpreted by the Supreme Court, and it's time to open up the drawer in which our Article Five powers are, and take that out, and start brandishing it to ward off the attack of the people who are trying to break into your homes? I think that time is now.

Barnett also discussed the idea of interstate compacts in which states refuse to enforce the health insurance mandates.

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Registration is now open for the 13th Annual Federalist Society Faculty Conference. The conference will be held January 7, 2011, in San Francisco at the Hotel Monaco San Francisco, 501 Geary Street. Our conference will be held during the 2011 AALS convention. We hope this conference will offer an opportunity for those interested in the Society to share ideas and scholarship with each other.

Please contact Faculty Division Deputy Director Erin Sheley (erin.sheley@fed-soc.org) if you have not received an invitation and are interested in attending.

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Adam Liptak at The New York Times reports that the U.S. Supreme Court has agreed to hear the appeal of Wal-Mart in the largest employment discrimination case in U.S. history, in which hundreds of thousands of women are attempting to certify a class action claiming that Wal-Mart discriminated against them through pay and promotions.

The question the Court will decide is whether the individual employees can combine their claims into a single class action, or whether they must be tried separately. Liptak writes:

The court's decision on that issue will almost certainly affect all sorts of class-action suits, including ones asserting antitrust, securities and product liability, as well as other claims.

Wal-Mart argues in briefing that there are so many plaintiffs, who have been employed at 3,400 different stories and who have possessed 170 different job classifications, that the cases cannot be similar enough for courts to combine them into class actions. Plaintiffs argue, and the 9th Circuit Court of Appeals agreed below, that the class is large merely because Wal-Mart is the largest employer in the country and that the claims are similar enough for the plaintiffs to be combined into a single class.

Click here for the Washington Post story, and here for the post on The Blog of Legal Times.

Listen to the audio here.

On Nov. 9, the Supreme Court heard oral argument in Cullen v. Pinholster. The questions in this case are 1) whether it is appropriate under 28 U.S.C. § 2254 for a federal court to conclude that a state court’s rejection of a claim was unreasonable in light of facts that an applicant could have alleged in state court, but never did; and 2) what standard of review is applicable to claims of ineffective assistance of counsel.

To discuss the case in this post-argument edition of SCOTUScast, we have Ronald Eisenberg, who is the Deputy District Attorney for the Law Division of the Philadelphia District Attorney's Office.

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The Federalist Society is hosting two events at the National Press Club in Washington, D.C. in the coming weeks.

The first, on Dec. 9 at noon, is entitled "Changing the Federal Rules of Civil Procedure: Has the Time Come?," and will feature Profs. Ronald J. Allen and Martin H. Redish of Northwestern, Prof. E. Donald Elliott of Yale, and Prof. Richard M. Esenberg of Marquette discussing such issues as changes to pleading standards, the scope of permissible discovery, and the obligation to preserve potential evidence. Hon. Merrick B. Garland of the D.C. Circuit Court of Appeals will moderate.

The second, on Dec. 16 at noon, will feature a panel discussing "Regulation of the Internet." FCC Commissioner Meredith Attwell Baker will deliver an opening address, and panelists will include Mr. Christopher Libertelli of Skype, Prof. Joshua D. Wright of George Mason, and Prof. Christopher S. Yoo of the University of Pennsylvania.

You can register at the links provided above. There is no charge for either event.

Ashby Jones over at the WSJ Law Blog has an update today on the differing fates of the health-care lawsuits, challenging, among other provisions, the individual mandate requiring everyone who can afford it to buy health insurance, in district courts around the country. In Lynchburg, Va., a federal district court upheld the law against a challenge from Liberty University and five individuals. Click here to read the opinion.

Judge Norman Moon held that the "challenged provisions are well within Congress's authority under the Commerce Clause" of the U.S. Constitution. While a federal judge in Michigan upheld the law in October, a judge in Florida and a judge in a separate suit in Virginia by Virginia AG Kenneth Cuccinelli are continuing after these judges refused to dismiss the cases before hearing argument.

Calling this setback "only a bump in the road," the lawyer in the Lynchburg case predicted success on appeal because "Congress does not have the authority to force every American to purchase a particular kind of health insurance product."

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