FedSoc Blog

A former stockroom employee of Abercrombie & Fitch is suing the company for firing her because she refused to take off her Muslim headscarf, AP reports.

The story comes in the midst of battles across the globe over the right of women to wear the headscarf and other forms of hijab, with France recently banning the wearing of facial veils in public places because, they argued, it was demeaning to women and prevented identification.

Hani Khan says that she was hired to work at an Abercrombie store while she was wearing the headscarf, and the manager told her she could wear it to work so long as it was in company colors. But she says that she was later suspended and fired because when a district manager and human resources manager asked her to remove the hijab while working, she refused to do so.

In response to the suit, Abercrombie's general counsel said:

We comply with the law regarding reasonable religious accommodation, and we will continue to do so. We are confident that when this matter is tried, a jury will find that we have fully complied with the law.

Stated Khan, currently a political science major in college:

Growing up in this country where the Bill of Rights guarantees freedom of religion, I felt let down. This case is about principles, the right to be able to express your religion freely and be able to work in this country.

The Chicago Sun-Times reports that former Illinois Governor Rod Blagojevich was found guilty on 17 of 20 federal corruption charges today, including all of the charges related to accusations that he attempted to trade an appointment to the former Senate seat of President Obama.

Some of the convictions could result in prison terms of up to twenty years, though Reuters reports in this video that he is expected by many analysts not to receive the maximum.

The U.S. Supreme Court today wrapped up its October 2010 Term, issuing five decisions, including decisions on a state's law restricting the sale of violent video games and a state's public campaign finance system.

In one of the most talked-about cases of the Term, Brown v. Entertainment Merchants Association, the Supreme Court held, 7-2, that a California law restricting the sale of violent video games to minors violates the First Amendment.

In its analysis, the Court found that the studies presented by California do not prove that children act more aggressively after being exposed to violent video games, and any such effects are indistinguishable from effects of other media, like Saturday morning cartoons. The law also is not necessary to assist parents in keeping their children from accessing the games, according to the Court.

Therefore, the Court held that the state was unable to meet the demanding "strict scrutiny" standard imposed on such speech restrictions by the First Amendment. Justice Scalia wrote the decision; Justices Thomas and Breyer filed dissenting opinions.

The Court also released its decision in Az. Free Enterprise Club's Freedom Club PAC v. Bennett, striking down Arizona's public campaign finance system, which provides matching funds but also restricts some campaign activities of candidates who opt into the system, as violating the First Amendment.

The Court, in a 5-4 decision authored by Chief Justice Roberts, said that the system "substantially burdens political speech" by penalizing candidates who do not accept public financing and the restrictions that come with it. Justice Kagan issued a dissenting opinion joined by Justices Ginsburg, Breyer, and Sotomayor.

For more on the Free Enterprise case, click here to view SCOTUSblog's page on the issues involved.

UPDATE: In the other three decisions (which are probably only accessible and exciting to the law nerds out there):

• The Court held in J. McIntyre Machinery v. Nicastro that a New Jersey court could not exercise jurisdiction over an English manufacturer when an individual attempted to sue the manufacturer after injuring his hand while using one of the company's metal-shearing machines.
• The Court held in Goodyear Dunlop Tires Operations, S.A. v. Brown that North Carolina courts had no jurisdiction to adjudicate certain claims brought against Goodyear by North Carolina residents whose sons allegedly died as a result of tire failure outside Paris, France.
• The Court, in United States v. Juvenile Male, reversed a 9th Circuit Court of Appeals judgment striking down provisions of the Sex Offender Registration and Notification Act because there was no live issue in the case when the 9th Circuit heard it.

Stay tuned for more coverage of the Court's final decisions of the Term throughout the day.

The Washington Post reports that the House of Representatives has rejected a resolution that would cut off funding for U.S. offensive military operations in Libya by a vote of 238 to 180.

The measure would have stopped funding for forces that are initiating direct strikes on Libyan targets, like unmanned aerial drones, but would have continued funding support missions within the NATO coalition, like refueling, reconnaissance, and planning operations.

In the first vote today on Libya, however, the House rejected a measure 295-123 that would have authorized the operation in Libya, which has been continuing for about three months.

For prior FedSoc Blog posts on the operation in Libya, click here, here, and here.

The New York Times reports that the Amsterdam District Court, in a decision by presiding Judge Marcel van Oosten, acquitted Geert Wilders, a Dutch politician on trial for statements he has made about Islam.

The court found that Wilders's comments are protected under the case law of the Dutch Supreme Court and the European Court of Human Rights. Click here to view the decision.

Mr. Wilders had faced a potential one-year prison sentence for alleged hate speech, including comparing the Koran with Hitler's Mein Kampf, encouraging an end to Muslim immigration, and a film portraying Islam as an inherently violent religion.

However, it was expected that he would be acquitted of the charge since even the prosecutors had called for this result, saying that his statements were focused "against a religion as such and not against individual persons or a group of people."

While the attorney representing the complainants in the case says that "there is no appeal possible in the Netherlands," she plans instead to bring the case to the United Nations Commission on Human Rights, though it appears that she is referring to the United Nations Human Rights Council, which replaced the Commission in 2006.

Listen to the audio here.

On June 9, 2011, the Supreme Court announced its decision in Microsoft Corp. v. i4i Limited Partnership. According to §282 of the Patent Act of 1952, "[a] patent shall be presumed valid" and "[t]he burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity." The question in this case is whether "§282 requires an invalidity defense to be proved by clear and convincing evidence."

In an opinion delivered by Justice Sotomayor, the Court held by a vote of 8-0 that §282 of the Patent Act does require an invalidity defense to be proved by clear and convincing evidence. Justices Scalia, Kennedy, Ginsburg, Breyer, Alito, and Kagan joined Justice Sotomayor’s opinion. Justice Breyer filed a concurring opinion, which Justices Scalia and Alito joined. Justice Thomas filed an opinion concurring in the judgment. Chief Justice Roberts took no part in the consideration or decision of the case.

To discuss the case, we have Professor Adam Mossoff, who is a professor at the George Mason University School of Law.

Click here to view this article on the source site »

The Federalist Society has published a new paper from Benjamin Wittes of the Brookings Institution as part of its New Federal Initiatives Project (NFIP).

The paper, entitled "An Analysis of the National Defense Authorization Bill," discusses the detention and Authorization for Use of Military Force (AUMF) provisions of the bill, how these provisions differ from previous versions, and where they are generating opposition.

Mr. Wittes also posted Tuesday on his Lawfare Blog about new detainee language from the Senate Armed Services Committee.

Senators John F. Kerry and John McCain, the Boston Globe reports, offered a resolution on Tuesday that would offer congressional support to President Obama over his military action in Libya.

However, the resolution also purports to place limits on the President's actions, authorizing involvement in support of Libyan rebels for only one year and opposing the insertion of ground forces into Libya. Pres. Obama is also opposed to introducing troops on the ground.

While leaders from both parties in the Senate support the resolution, it may not stop the bipartisan opposition in the House from attempting to withhold funding from the military effort, especially considering that some scholars are saying that the resolution does nothing to meaningfully limit the President's actions.

For more on the President's authority to provide military aid to the Libyan rebels, join us today (Wednesday, June 22) at 1 PM EDT for a conference call with David Rivkin of Baker & Hostetler and Prof. Ilya Somin of George Mason University School of Law on "The President's Authority in Libya." Dial 888-752-3232 to join the call.

For past blog posts on Libya, click here and here.

In January 1995, the Boston Police Department received a call that a police officer had been shot and that four black suspects were fleeing the scene in a car. After a lengthy chase, the suspects jumped out of the car and ran in different directions. During the confusion, a group of police mistook Michael Cox, a black undercover officer, for one of the suspects, hit him on the head from behind, and began to beat him.

While the officers were attacking Cox, Officer Kenneth Conley spotted one of the suspects from his car and pursued him on foot. In the course of the chase, he ran directly by the beating of Cox. The officers hitting Cox eventually realized their mistake and dispersed without seeking help for their victim.

Later, during an investigation into Cox's beating, no officer would admit to participating in the incident. However, Conley said he was in the area but insisted that he did not see that the attack was occurring. The investigators did not believe his story, and Conley was convicted of perjury and obstruction of justice.

Inspired by this event, reports NPR, psychologists Chris Chabris from Union College and Daniel Simons from the University of Illinois decided that they would test inattentional blindness - that is, the tendency of human beings to tune out something that is right in front of them when they are focused on something else.

In their experiment, the test subject was told to run behind a jogger and count the number of times the jogger touched his hat. During the experiment, Chabris and Simons staged a fight among some students slightly to the side of the running path. When asked about the fight afterward, a surprisingly high number of subjects reported that they had not noticed it.

This experiment raises a number of questions about the potential effect of inattentional blindness on the legal process. How reliable is testimony from a witness, for instance, when that witness was focused on something else at the time of the alleged crime?

It would also seem to add a new tool to the arsenal of defense attorneys, who could use this study and others like it to discount the credibility of the ID of the defendant, or, as in the case of Officer Conley, to argue that the defendant could not have noticed something others might expect him to notice.

To test your own level of selective attention, click on the video above and see how you do.

The Supreme Court issued four decisions today, including the class action certification case Wal-Mart v. Dukes and the global warming standing case American Electric Power Co. v. Connecticut.

In Wal-Mart, the Court, 5-4, reversed the decision of a district court certifying a class of about 1.5 million female employees of Wal-Mart who claimed that the company discriminated against them in its pay and promotion policies, holding that the certification of the class violated Federal Rule of Civil Procedure 23(a)'s requirement that a party seeking certification prove that the class has common "questions of law or fact."

Justice Scalia wrote the majority opinion, with Chief Justice Roberts and Justices, Kennedy, Thomas, and Alito joining. Justice Ginsburg wrote an opinion concurring in part and dissenting in part, in which Justices Breyer, Sotomayor, and Kagan joined.

In AEP, the Court found itself equally divided, 4-4, on the question of whether the plaintiff states and private individuals had standing to sue companies for nuisance under federal common law in light of their alleged contribution to greenhouse gases causing climate change (Justice Sotomayor recused).

However, a unanimous Court held that the Clean Air Act and EPA action authorized by the Act displaced any right under federal common law to sue for reduction of carbon dioxide emissions from these companies.

Justice Ginsburg wrote the opinion of the Court, and Justice Alito wrote a short opinion joined by Justice Thomas concurring in part and concurring in the judgment.

The other two cases released today are Borough of Duryea v. Guarnieri, on the right of a public employee to petition for grievances under the U.S. Constitution, and Turner v. Rogers, on an individual's right to counsel in a civil contempt hearing. Stay tuned for more coverage of these cases on FedSoc Blog...

As the dispute continues between Congress and President Obama over whether the President has violated the Constitution and/or the War Powers Resolution by committing forces to assist rebel military operations in Libya, Robert Chesney from Brookings has a primer on this debate that goes through the arguments on each side of the issue and ultimately evaluates their persuasiveness.

For a past FedSoc Blog post on the Libya/War Powers Resolution issue, and for Federalist Society publications on the topic, click here.

Under a proposed bill in the U.S. Senate, anyone who uploads a cover of a copyrighted song to YouTube without permission could face up to five years in prison, reports Gizmodo. The bill would also mean jail time for people distributing these copyrighted performances online.

This is bad news for performers like Keenan Cahill, whose stirring performance of "Making Love Out of Nothing at All" is above.

The Washington Post reports today that the Obama Administration has responded to criticism and a lawsuit from a bipartisan group of lawmakers over its military operation in Libya with a 32-page report stating that, under the 1973 War Powers Resolution (WPR), such authorization is unnecessary.

The U.S. has been participating in the operation to oust Libyan leader Moammar Gaddafi from power for three months, surpassing the sixty-day deadline set under the WPR for the President to obtain congressional approval for military operations. The Republican House leadership and some Democrats have criticized the President for not obeying the WPR or adequately consulting with Congress about the operation. In a letter to President Obama on Tuesday, House Speaker John Boehner wrote:

(T)he ongoing, deeply divisive debate originated with a lack of genuine consultation prior to commencement of operations and has been further exacerbated by the lack of visibility and leadership from you and your administration.

The report issued today states that the President will not seek any extra funding for the operation in Libya and that "there has not been a significant operational impact on United States activities in Iraq and Afghanistan." Responding to arguments that the operation is illegal under the WPR because the President did not seek congressional operations, the report states that the operation does not constitute the kind of "hostilities" contemplated by the WPR.

For more on the President's authority in the Libyan operation, be sure to dial in next Wednesday, June 22, at 1 PM to a Federalist Society Teleforum Conference Call featuring David Rivkin of Baker & Hostetler and Prof. Ilya Somin of George Mason University School of Law discussing this topic. The number is 1-888-752-3232.

Also, click here to listen to a Practice Groups Podcast on the President's authority in Libya by Prof. Saikrishna Prakash of the University of Virginia School of Law, Mr. Rivkin, Prof. Peter Spiro of Temple University Beasley School of Law, and Edwin Williamson of Sullivan & Cromwell, with Ronald Cass of Cass & Associates moderating.

And click above to watch the video of an event co-hosted by the Fordham Student Chapter and the International & National Security Law Practice Group on "Domestic and Legal Issues Arising from American Intervention in Libya."

The Washington Post has an article today discussing the scrapped Yucca Mountain project, which the Bush Administration approved for the purpose of storing 70,000 tons of radioactive waste but the Obama Administration has since shut down (click here for an earlier post on the topic). The Post article states:

Yucca Mountain is a case study in government dysfunction and bureaucratic inertia. The project dates back three decades. It has not solved the problem of nuclear waste but has succeeded in keeping fully employed large numbers of litigators.

According to the article, the D.C. Circuit Court of Appeals is set to release a decision in the near future on claims by some plaintiffs, including the states of Washington and South Carolina, that the Obama Administration did have the authority to get rid of the Yucca program.

For more on Yucca, click here to read a paper describing the project and the delay of judicial review on its termination by C.J. Milmoe, written for the Federalist Society's New Federal Initiatives Project.

Alex Pollock of the American Enterprise Institute has an interesting article on the Dodd-Frank Wall Street Reform and Consumer Protection Act, which he says should be called the "Faith in Bureaucracy Act," on Real Clear Markets.

He writes that the Act will not defeat future financial crises in the financial markets because the regulators set up to protect us against such crises do not "have any superior insight into the unknowable future and its ineradicable uncertainty" compared to the rest of America.

Along the same lines, check out this article by Stephen M. Bainbridge in the Minnesota Law Review deeming the Dodd-Frank bill "quack federal corporate governance," and arguing that "some of (the Act's provisions) are meaningless symbolism but that others are likely to have serious adverse consequences."

For Oliver Stone's take, click here for the trailer to Wall Street (1987).