FedSoc Blog

The “Living Constitution” and the Supreme Court Website

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by The Federalist Society
Posted April 29, 2011, 2:35 PM

Eugene Volokh on the Volokh Conspiracy has pointed out this from the U.S. Supreme Court's The Court and Constitutional Interpretation page:

This power of "judicial review" has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a "living Constitution" whose broad provisions are continually applied to complicated new situations.

While most would find it uncontroversial that the Supreme Court would apply the Constitution to "complicated new situations," Prof. Volokh writes that "the term 'living Constitution' has become so ideologically loaded that it struck me as a bit surprising to see it on what I would expect to be a pretty uncontroversial 'About the Supreme Court' Web page."

Categories: External Articles

New SCOTUScast: American Electric Power Co. v. Connecticut

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by The Federalist Society
Posted April 27, 2011, 4:21 PM

Listen to the audio here.

On April 19, the Supreme Court heard oral argument in American Electric Power Company v. Connecticut. The question in this case is whether federal law permits states and private entities to sue utilities for allegedly contributing to global warming.

To discuss the case, we have Megan L. Brown, who is a partner at Wiley Rein LLP. Ms. Brown is on an amicus brief in support of the petitioners.

Click here to view this article on the source site »

Categories: Multimedia, SCOTUScasts

How Accurate Are Law School Job Statistics?

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by The Federalist Society
Posted April 27, 2011, 1:33 PM

Paul Campos has written an article for The New Republic criticizing law schools for publishing misleading employment statistics that make it appear that nearly all their students are receiving employment as lawyers after graduation when the numbers are actually much lower.

Until about a month ago, according to Campos, almost all ABA-accredited law schools were reporting that their nine-month employment rates were over 90 percent, but the U.S. News & World Report recently revised these numbers downward amid criticisms that they were inaccurate.

Campos writes that the numbers are artificially inflated because they include people in temporary positions, and because law schools and the organizations publishing the statistics are not auditing the data upon which these statistics are based. He also suggests that, in order to adequately inform prospective students who are deciding whether to go to law school, schools should give out more information about what jobs their students are getting and whether they feature the legal work students were seeking when they went to school.

Categories: External Articles

AG Holder Criticizes Clement Critics

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by The Federalist Society
Posted April 26, 2011, 4:35 PM

The Blog of Legal Times reports that Attorney General Eric Holder Jr. today defended Paul Clement's decision to leave King & Spalding in order to continue representing the House of Representatives in its support of the constitutionality of the Defense of Marriage Act, stating: "I think those who were critical of (Clement) for taking that representation - that criticism is very misplaced."

Attorney General Holder also compared the criticism of Clement to the criticism a year ago of Justice Department lawyers who had represented Guantanamo detainees in private practice:

The people who criticized our people here at the Justice Department were wrong then, as are people who criticized Paul Clement for taking the representation that is going to continue.

The comments came after the Attorney General delivered remarks at DOJ's Great Hall to lawyers and staff detailing the Department's current priorities.

Categories: External Articles

New SCOTUScast: Astra USA v. Santa Clara County

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by The Federalist Society
Posted April 26, 2011, 4:25 PM

Listen to the audio here.

On March 29, the Supreme Court announced its decision in Astra USA v. Santa Clara County. The question in this case was whether health care providers, due to their status as a third-party beneficiary, could sue drug manufacturers for not following price limitations set by contracts between the manufacturers and the federal government.

In an opinion delivered by Justice Ginsburg, the Court held by an 8-0 vote that health care providers may not bring suits against drug manufacturers to enforce ceiling-price contracts between drug manufacturers and the federal government. Justice Kagan took no part in the consideration or decision of the case.

To discuss the case, we have Jeffrey S. Bucholtz, who is a partner in the Appellate Practice Group at King & Spalding. Mr. Bucholtz was on an amicus brief in support of the petitioners.

Click here to view this article on the source site »

Categories: Multimedia, SCOTUScasts

Newly Updated Conservative-Libertarian Bibliography of Legal Scholarship

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by The Federalist Society
Posted April 26, 2011, 2:39 PM

The Federalist Society's Faculty Division is pleased to announce the completion of a comprehensive update of our online Conservative-Libertarian Bibliography of legal scholarship. Our annotated bibliography is an easy-to-use resource for law students and aspiring legal scholars, collecting the key work by conservative and libertarian scholars across a wide range of subject areas. Whether you're interested in constitutional law or taxation, if you seek a quick introduction to the major thinkers in a particular discipline, check out the bibliography!

Click here to view this article on the source site »

New SCOTUScast: Az. Christian School Tuition Org. v. Winn

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by The Federalist Society
Posted April 25, 2011, 4:51 PM

Listen to the audio here.

On April 4, the Supreme Court announced its decision in Arizona Christian School Tuition Organization v. Winn. In Arizona, there is a state program that offers a tax credit to people who make contributions to school tuition organizations (STOs). STOs use the contributions to provide scholarships to students who attend private schools, including religious schools.

The questions in this case were 1) whether a taxpayer have standing to challenge the state's tax credit program as a violation of the Establishment Clause and 2) whether the state's tax credit program violate the Establishment Clause.

In an opinion delivered by Justice Kennedy, the Court held by a vote of 5-4 that the taxpayers lacked Article III standing to challenge the program. Because the taxpayers lacked Article III standing, the Court did not reach the question of whether the tax credit program violated the Establishment Clause.

To discuss the case, we have Joshua P. Thompson, a staff attorney at the Pacific Legal Foundation. Mr. Thompson was on an amicus brief in support of the petitioners.

Click here to view this article on the source site »

Categories: Multimedia, SCOTUScasts

Paul Clement, King & Spalding, and the DOMA Case

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by The Federalist Society
Posted April 25, 2011, 1:55 PM

Politico reports that King & Spalding has reversed course and decided not to represent the House of Representatives in defending the Defense of Marriage Act in federal court. King & Spalding Chairman Robert D. Hays, Jr. issued the following statement:

Today the firm filed a motion to withdraw from its engagement to represent the Bipartisan Legal Advisory Group of the House of Representatives on the constitutional issues regarding Section III of the 1996 Defense of Marriage Act. Last week we worked diligently through the process required for withdrawal.

In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate. Ultimately I am responsible for any mistakes that occurred and apologize for the challenges this may have created.

The firm had been challenged on its involvement in the litigation through protests at its office in Atlanta and in a national campaign. In response to his firm's decision to drop the litigation, Paul Clement, who was going to lead the defense, resigned, stating in a letter to Hays:

I resign out of the firmly-held belief that a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters. Defending unpopular clients is what lawyers do ... I recognized from the outset that this statute implicates very sensitive issues that prompt strong views on both sides. But having undertaken the representation, I believe there is no honorable course for me but to complete it.

According to this release, Clement will join Bancroft PLLC, a small litigation firm based in Washington, D.C. that was founded by former U.S. Assistant Attorney General and law professor Viet D. Dinh.

Click here to read Clement's resignation letter. Click here to read Ed Whelan's take on the firm's decision and Clement's subsequent resignation on NRO Bench Memos. Click here for the post on the Wall Street Journal Law Blog.

Categories: External Articles

Cases Show Risks of Unsecured Wi-Fi Access

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by The Federalist Society
Posted April 25, 2011, 10:29 AM

The Detroit News has a story today about a man in Buffalo, N.Y. whose home was stormed by federal agents when investigators discovered that someone had been using his internet connection to download child pornography. These agents soon discovered that it was not the homeowner who had been dowloading the illegal material, but rather a neighbor who had been connecting to the Internet using the man's wireless router, which was not password protected.

Because of a number of such cases in which owners of wireless routers are investigated for the illegal activity of people using their unsecured signal, law enforcement officials are urging people to secure their wireless routers with passwords.

The use of others' wireless routers to commit criminal activity leads to the question whether the owners of these routers can be held responsible for crimes that take place using their Internet connection when they fail to password-protect their routers. It appears that federal officials have not yet prosecuted anyone for unknowingly providing an Internet connection to such criminals, though in Germany a party may be fined if their unsecured connections are used to download data illegally.

Categories: External Articles

Waivers and the Administrative State

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by The Federalist Society
Posted April 22, 2011, 10:39 AM

Professor Richard Epstein has an article in National Affairs called "Government by Waiver" that explores the use of waivers in the modern state and warns against the abuse of such waivers.

Prof. Epstein points out that both the Patient Protection and Affordable Care Act and the Wall Street Reform and Consumer Protection Act allow for a large amount of discretion to set standards within the administrative state, and thus, to a large degree, give regulatory agencies the power to decide who will be subject to the rules and who will not.

While Epstein is not per se against the authority to grant waivers, he argues that this authority can be abused in ways that violate the Western concept of the rule of law.

 

Categories: External Articles

New SCOTUScast: FCC v. At&T and Milner v. Dep’t of the Navy

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by The Federalist Society
Posted April 21, 2011, 10:56 AM

Listen to the audio here.

On March 1, 2011, the Supreme Court announced its decision in FCC v. AT&T, a case involving the Freedom of Information Act (FOIA). FOIA requires federal agencies to make records and documents publicly available upon request, unless the materials sought fall within one or more exemptions created by the Act.  

One of these exemptions, Exemption 7(C), applies to law enforcement records that if disclosed "could reasonably be expected to constitute an unwarranted invasion of personal privacy." The question in this case was whether corporations have "personal privacy" for the purposes of applying Exemption 7(C).

In an opinion delivered by Chief Justice Roberts, the Court held by a vote of 8-0 that the "personal privacy" protections embodied in Exemption 7(C) do not extend to corporations. Justice Kagan took no part in the consideration or decision of the case.

On March 7, 2011, the Supreme Court announced its decision in Milner v. Department of the Navy, another FOIA case. Milner concerns the range of FOIA Exemption 2, which shields from disclosure material "related solely to the internal personnel rules and practices of an agency." The question in this case was whether Exemption 2 could be used to deny a FOIA request for data and maps used to help store explosives at a naval base in Washington State.

In an opinion delivered by Justice Kagan, the Court held by a vote of 8-1 that Exemption 2 did not shield the explosive-related data and maps from disclosure. Justice Breyer filed a dissenting opinion.

To discuss the AT&T and Milner cases, we have Richard J. Peltz, a professor at the University of Arkansas Little Rock William H. Bowen School of Law.

Click here to view this article on the source site »

Categories: Multimedia, SCOTUScasts

Supreme Court Hears Argument in Global Warming Case

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by The Federalist Society
Posted April 20, 2011, 1:58 PM

Coral Davenport from NationalJournal reports that the U.S. Supreme Court yesterday heard oral argument in American Electric Power Co. v. Connecticut, where six states and three conservation groups are suing various companies over their carbon emissions because, the plaintiffs argue, these emissions are contributing to climate change.

Davenport writes that it appears the Justices are poised to dismiss the case, as Justice Stephen Breyer, seen as a crucial swing vote in the case, seemed to indicate in his questions that limiting carbon emissions as a "public nuisance" may place courts in an inappropriate policy-making role. Other Justices, including Ruth Bader Ginsburg and Elena Kagan, also questioned whether the courts are the appropriate forum in which to decide the regulation of such emissions.

The Federalist Society has just published a paper, forthcoming in Engage: The Journal of the Federalist Society's Practice Groups, that examines the case and, more generally, global warming litigation in the federal courts. Click here to read "Are Nuisance Lawsuits to Address Climate Change Justiciable in the Federal Courts? Global Warming at the Supreme Court," by Megan L. Brown.

Money, State Courts, and Merit Selection

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by The Federalist Society
Posted April 18, 2011, 1:51 PM

The New York Times published an op-ed yesterday by Erwin Chemerinsky and James J. Sample arguing that, given the fact that judicial elections are likely to continue in many states, these states should seek to limit financial contributions and expenditures on judicial election campaigns. They also write that the Supreme Court should find that what they deem is a compelling interest in having an impartial bench is enough to permit campaign spending restrictions that would not be allowed for nonjudicial elections under the Constitution.

In other state court selection news, the Chicago Tribune ran a story last week reporting on the influence Michael Madigan, the Illinois House Speaker, has on the selection process there, termed "merit selection," in which a judicial committee selects a list of candidates for the bench from which the governor then chooses. Credit to Jonathan H. Adler, who linked to this story on The Volokh Conspiracy yesterday.

For more on judicial merit selection versus election, click here to read Judicial Elections and Their Opponents in Ohio by Jacob H. Huebert, published by the Federalist Society in November.

Proposition 8 Supporters Object to Judge’s Use of Trial Clips

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by The Federalist Society
Posted April 15, 2011, 2:33 PM

The San Francisco Chronicle reports that those supporting California's Proposition 8, which defined "marriage" as a union between a man and a woman and was struck down as violative of the U.S. Constitution by Judge Vaughn Walker in district court, have accused the judge of committing illegal and unethical acts by showing a portion of the video from the Proposition 8 trial to a college audience.

Prior to the trial, the U.S. Supreme Court ruled that a live telecast of the proceedings would not be allowed. On Feb. 18, after his decision in the case, Judge Walker played an excerpt from a cross-examination that took place during the Proposition 8 trial to an audience at the University of Arizona as he advocated for using cameras in the courtroom. The speech aired on C-SPAN.

Charles Cooper, the lawyer for sponsors of Proposition 8, argued in a motion filed with the Ninth Circuit Court of Appeals, which is currently reviewing Judge Walker's ruling, that Judge Walker violated court rules and "defied the United States Supreme Court" by playing this clip. The motion asks the appeals court to obtain all copies of the video from the judge and the plaintiffs in the case and to seal them from the public.

Click here to read the motion.

In response, Theodore Boutros, an attorney for the plaintiffs challenging Proposition 8, wondered, "Why should the public be denied the opportunity to see and hear what happened in a public trial in a public courtroom in a case involving the constitutional rights of millions of people?"

Categories: External Articles

New SCOTUScast: J.D.B. v. North Carolina

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by The Federalist Society
Posted April 14, 2011, 3:30 PM

Listen to the audio here.

On March 23, the Supreme Court heard oral argument in J.D.B. v. North Carolina, a case concerning the standard used to determine when a suspect must be advised of his Miranda rights.

A person generally is not entitled to Miranda warnings until that person is to be subjected to questioning while in police custody. A person is usually considered to be in police "custody" if a reasonable person in the same circumstances would believe that he or she is not free to terminate the police questioning and leave. The question in the J.D.B. case is whether a court should consider the age of a juvenile suspect when determining whether the juvenile was in "custody" for Miranda purposes.

To discuss the case in this post-argument SCOTUScast, we have Carissa Byrne Hessick, an associate professor at Arizona State University’s Sandra Day O’Connor College of Law.

Click here to view this article on the source site »

Categories: Multimedia, SCOTUScasts

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