FedSoc Blog

A three-judge panel of the 9th Circuit ruled yesterday that a man from La Mesa, California who called for others to shoot Barack Obama when he was a presidential candidate in 2008 and said that Obama "will have a 50 cal in the head soon" was exercising his 1st Amendment right to freedom of speech, reports The Los Angeles Times.

Click here for the decision, written by Judge Stephen Reinhardt. The panel split, with Chief Judge Alex Kozinski joining the majority opinion and Judge Kim McLane Wardlaw concurring in part and dissenting in part.

The man, Walter Bagdasarian, who said he was drunk at the time he posted the comments to a Yahoo.com financial website on Oct. 22, 2008, had been convicted under a statute making it a crime "to knowingly and willfully threaten to kill, kidnap, or inflict bodily harm upon a major candidate for the office of president or vice president." The panel overturned his conviction, finding that the statute does not make "predictions or exhortations to others to injure or kill the president" illegal.

In her dissent, Judge Wardlaw agreed with the majority's 1st Amendment standard but wrote that the man's statements met this standard of speech that may be prohibited. She argued:

The majority focuses narrowly on the charged threats and dismisses them as mere imperatives or predictions. But our case law is to the contrary. We do not require that the speaker in a threats case explicitly threaten that he himself is going to injure or kill the intended victim; rather, we examine the surrounding circumstances to determine whether a reasonable person in the speaker's shoes would foresee that his statements would be perceived as threats.

Listen to the audio here.

On May 31, 2011 the Supreme Court announced its decision in Ashcroft v. al-Kidd. The question in this case was "whether a former Attorney General enjoys immunity from suit for allegedly authorizing federal prosecutors to obtain valid material-witness warrants for detention of terrorism suspects whom they would otherwise lack probable cause to arrest."

In an opinion delivered by Justice Scalia, the Court held the following by a vote of 8-0: First, "an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive." Second, "[then-Attorney General] Ashcroft did not violate clearly established law;" therefore he "deserves qualified immunity."

Chief Justice Roberts and Justices Kennedy, Thomas, and Alito joined Justice Scalia's opinion. Justice Kennedy filed a concurring opinion, which Justices Ginsburg, Breyer, and Sotomayor joined as to Part I. Justice Ginsburg filed an opinion concurring in the judgment, which Justices Breyer and Sotomayor joined. Justice Sotomayor filed an opinion concurring in the judgment, which Justices Ginsburg and Breyer joined. Justice Kagan took no part in the consideration or decision of the case.

To discuss the case, we have Richard A. Samp, who is Chief Counsel at the Washington Legal Foundation.

Click here to view this article on the source site »

David Rivkin and Lee Casey have an op-ed in The Wall Street Journal today noting that some U.S. senators have asserted that News Corp. companies might have been violating the U.S. Foreign Corrupt Practices Act (FCPA) by exchanging money for information from British police.

Rivkin and Casey argue that the use of the FCPA, which was originally intended to prevent businesses from paying off foreign government officials in return for special advantages like "product approvals, permits or licenses," to prevent payments for news-gathering purposes goes much further than the original intention behind the legislation and could violate the First Amendment. They write:

U.S. courts, including the Supreme Court, have been reluctant to allow the government to use capaciously worded federal statutes in ways that burden activities protected by the First Amendment. The typical questions the courts have posed in such circumstances are whether the statutory prohibition is overly broad, and whether, perhaps, there is a different, more First Amendment-friendly way of accomplishing the government's goals.

They argue that the courts cannot intelligently determine whether or not there is such a better way of accomplishing the goals of the law when the statute was not even originally drawn up with such an application to news-gathering and speech in mind, and that therefore it is unlikely that the courts will be willing to apply the FCPA in this scenario.

David Segal has an interesting and extensive article in The New York Times discussing the business side of law school and how it has fared through "the worst recession in the legal profession's history."

According to Segal, even during the economic downturn, law schools are still boosting their tuition and the size of their classes at a higher rate than colleges. He writes:

In short, law schools have the power to raise prices and expand in ways that would make any company drool. And when a business has that power, it is apparently difficult to resist.

As evidence of this trend, he speaks of New York Law School, whose dean, Richard A. Matasar, has asserted for over ten years that the legal academy needs to be more willing to put the needs of students first. However, under Dean Matasar's tenure, New York Law School currently charges more than Harvard and increased the size of the incoming class in 2009, just as the recession struck, by 30 percent.

The universities associated with these law schools have possibly the largest incentive to keep tuition rates and class size growing, according to Segal, since "law schools toss off so much cash they are sometimes required to hand over as much as 30 percent of their revenue to universities, to subsidize less profitable fields."

It appears, therefore, that despite the downturn in available jobs due to the recession, there will continue to be an ample supply of lawyers (with a good deal of debt) coming from school in the coming years.

UPDATE: Here is a response from Larry Ribstein on Truth on the Market to Segal's article. Ribstein writes that Segal misses the point about why some law schools are expanding and that law schools' insulation from market forces through preferable government treatment and accreditation are at the root of the problem in academia.

Listen to the audio here.

On June 13, 2011, the Supreme Court announced its decision in Janus Capital Group, Inc. v. First Derivative Traders. The question in this case was "whether Janus Capital Management LLC (JCM), a mutual fund investment adviser, can be held liable in a private action under Securities and Exchange Commission (SEC) Rule 10b–5 for false statements included in its client mutual funds' prospectuses."

In an opinion delivered by Justice Thomas, the Court held by a vote of 5-4 that because Janus Capital Management did not make the false statements in the prospectuses, it cannot be held liable for those statements. Chief Justice Roberts and Justices Scalia, Kennedy, and Alito joined the opinion of Justice Thomas. Justice Breyer filed a dissenting opinion, which Justices Ginsburg, Sotomayor, and Kagan joined.

To discuss the case, we have Jonathan F. Cohn, who is a partner at Sidley Austin LLP.

Click here to view this article on the source site »

According to Heather Mac Donald in City Journal last week, while the budget crisis in California is forcing officials in the University of California system to make tough decisions about what programs and faculty members to keep, offices related to diversity within the system are protected from cuts. In fact, Mac Donald writes, the diversity offices are expanding despite the budget problems, with UC San Diego creating the new, full-time position of "vice chancellor for equity, diversity, and inclusion."

Mac Donald points to a number of examples of the UC system cutting programs and faculty while allowing diversity officials to stay and flourish, concluding:

Though tuition at UC will remain a bargain compared with what you would pay at private colleges, the regents won't be meeting their responsibility to California's taxpayers if they pass over in silence the useless diversity infrastructure that sucks money away from the university's real function: teaching students about the world outside their own limited selves.

Listen to the audio here.

On June 20, 2011, the Supreme Court announced its decision in American Electric Power Company v. Connecticut.  The question in this case was whether "the plaintiffs (several States, the city of New York, and three private land trusts) can maintain federal common law public nuisance claims against carbon-dioxide emitters (four private power companies and the federal Tennessee Valley Authority)."

In an opinion delivered by Justice Ginsburg, the Court held by a vote of 8-0 that "[t]he Clean Air Act and the Environmental Protection Agency action the Act authorizes . . . displace the claims the plaintiffs seek to pursue." Chief Justice Roberts and Justices Scalia, Kennedy, Breyer, and Kagan joined Justice Ginsburg’s opinion. Justice Alito filed an opinion concurring in part and concurring in the judgment, which Justice Thomas joined. Justice Sotomayor took no part in the consideration or decision of the case.

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 »

The decision of U.S. District Judge Reggie Walton to declare a mistrial in Roger Clemens' perjury case, as reported here by ESPN, has raised the issue of whether subjecting the famed pitcher to retrial would violate the U.S. Constitution's ban on double jeopardy.

Clemens' trial for obstruction of Congress and perjury after he allegedly lied to Congress regarding his use of performance-enhancing drugs came to an abrupt end on Thursday when Judge Walton declared that the prosecution had introduced evidence in "direct violation" of his pretrial ruling that such evidence was inadmissible.

Before the trial, the judge had barred the prosecution's use of Andy Pettitte's wife Laura as a witness to testify that Andy told her about how Clemens had admitted to Andy that he used steroids. However, as part of their case, prosecutors played a video of Rep. Elijah Cummings at the 2008 House Committee on Oversight and Government Reform hearing, at which Clemens allegedly perjured himself, talking about Laura's confirmation of how her husband had told her about Clemens's admission.

Now that he has declared a mistrial based on the introduction of this evidence, Judge Walton must determine whether he will give the prosecutors another chance to try Clemens. This decision will depend in part on whether jeopardy has "attached" in the trial; if it has, then Clemens cannot be placed on trial again due to the double jeopardy prohibition in the 5th Amendment: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb."

Most constitutional experts agree that the clause means that jeopardy attaches, and the defendant cannot be retried, once the jury has been selected and sworn in. Thus, jeopardy has attached in the present case, but the judge says that other issues will govern whether he will allow a retrial, the most important of which appears to be whether the prosecutors deliberately introduced the evidence or whether it was an inadvertent mistake.

Prosecutors must file a brief with Judge Walton by Aug. 19 explaining what caused the error. According to Lester Munson on ESPN.com: "Their best chance for a second trial will be an assertion, supported by sworn affidavits from staff members, that they were overwhelmed and understaffed, which led to an innocent mistake."

The Washington Post reports that the United States is giving the leaders of the rebel forces in Libya full diplomatic recognition as the "legitimate governing authority for Libya." Hillary Clinton made the announcement today.

This decision allows the U.S. government to grant the rebels access to more than $30 billion in frozen U.S. assets in Libya. The recognition takes place following five months of the rebels' military conflict to topple Moammar Gaddafi, as opposition to the U.S. presence in the conflict has been ramping up in Congress.

Click here for the last FedSoc Blog post on Libya. Click here for a Practice Groups Podcast on "The President's Authority in Libya," with Prof. Saikrishna Prakash of the University of Virginia School of Law, David Rivkin of Baker & Hostetler, Prof. Peter Spiro of Temple University - Beasley School of Law, and Hon. Edwin Williamson of Sullivan & Cromwell. Hon. Ronald Cass moderates.

On July 12, Miguel Estrada of Gibson Dunn & Crutcher delivered the Annual Supreme Court Roundup of the Federalist Society's D.C. Lawyers Chapter at the Mayflower Hotel.

After an introduction by Douglas R. Cox of Gibson, Dunn & Crutcher, Mr. Estrada began his remarks by continuing the tradition of highlighting an "inexplicable, stupid, embarrassing, or otherwise incomprehensible act by a public figure." This year's winner was former New York Congressman Anthony Weiner (pictured here in full Mets gear), who resigned last month amidst a Twitter and Facebook sex scandal.

Mr. Estrada went on to summarize some statistics and to highlight several interesting cases from what he deemed to be, overall, a particularly "boring" Term, including Snyder v. Phelps, Brown v. Entertainment Merchants Assn., Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, American Electric Power Co. v. Connecticut, and Wal-Mart Stores, Inc. v. Dukes.

Click on the video above to listen to Mr. Estrada's remarks.

Click here to view this article on the source site »

According to The Wall Street Journal Law Blog, Kody Brown and his four wives Meri, Janelle, Christine, and Robyn, who star with their combined 16 children in the TLC show "Sister Wives," have filed a federal suit in Utah claiming that the state's anti-bigamy law is unconstitutional.

Click here to see the complaint.

The Browns' show, says a synopsis by TLC, is focused on "expos(ing) the inner workings of a polygamist household, revealing the unexpectedly tight-knit and loving relationships between Kody's wives."

In the lawsuit, the reality T.V. family asserts that the anti-bigamy law, which makes it a felony for a person to have multiple legal marriage licenses, violates their 1st and 14th Amendment rights by denying them equal protection, due process, freedom of religion, and free speech rights. The law carries a maximum sentence of five years in prison.

Prof. Jonathan Turley of George Washington University Law School, who is representing the Kody Brown and his wives, says that the suit is not an effort to obtain multiple marriage licenses and therefore to disturb Utah's current decision not to recognize plural marriages. Instead, he says, the family only wants "the right to structure their own lives, their own family, according to their faith and their beliefs." Prof. Turley posted about the case on his blog here.

NPR has a story this week on a woman in Colorado whom the Justice Department is prosecuting for allegedly assisting in a mortgage scam and who refuses to hand over a password to her encrypted laptop.

Federal prosecutors say that requiring the woman to decrypt her laptop is like having her hand over a key to a safe, which is permissible under the U.S. Constitution. The woman's lawyer says that forcing the woman to give prosecutors the password would be making her incriminate herself and is thus unconstitutional under the 5th Amendment.

In the broadcast, Robert Siegel is joined by Declan McCullagh, chief political correspondent for CNET, who says that there's not currently any established law on the question of whether targets of prosecutions can be forced to decrypt their laptops.

According to McCullagh, the winner of the case will be the party that makes the best analogy:

And in this case, if you have encrypted files, is that like a safe? You can be compelled, according to Supreme Court precedent, to turn over the key to a safe. But you can't be compelled to turn over the pass phrase or, that is, the combination to the safe. So what's it more similar to? And this is what courts will wrestle with.

As Siegel and McCullagh discuss, prosecutors argue that if the court rules for the defendant in this case, police won't be able to search anyone's devices for child pornography or other cyber crimes because owners will simply encrypt their computers.

Peter Wallison, a senior fellow at the American Enterprise Institute, has an interesting op-ed in The Wall Street Journal today about the 2008 financial meltdown and a new book, Reckless Endangerment by Gretchen Morgenson and Josh Rosner, that investigates the causes of the crisis.

Both Wallison and the authors of Reckless Endangerment come to the conclusion that, far from contributing only "marginally" to the financial crisis, the government-sponsored enterprises Fannie Mae and Freddie Mac were the culprits who "brought the financial system to a halt in 2008," by encouraging subprime and other risky lending in the financial industry.

Listen to the audio here.

On June 20, 2011, the Supreme Court announced its decision in Wal-Mart v. Dukes, a class-action lawsuit brought by current and former Wal-Mart employees. The respondents alleged that nearly 1.5 million women were discriminated against on the basis of sex during their time of employment at thousands of Wal-Mart stores across the country. The main question before the Court was whether questions of law or fact common to the class existed, which is a requirement of Rule 23(a) of the Federal Rules of Civil Procedure.

In an opinion delivered by Justice Scalia, the Court held by a vote of 5-4 that the plaintiff class did not meet the commonality requirement of Rule 23(a) and therefore could not be certified as a class. Chief Justice Roberts and Justices Kennedy, Thomas, and Alito joined Justice Scalia’s opinion. Justices Ginsburg, Breyer, Sotomayor, and Kagan joined Parts I and III of Justice Scalia’s opinion. Justice Ginsburg also filed an opinion concurring in part and dissenting in part, which Justices Breyer, Sotomayor, and Kagan joined.

To discuss the case, we have Brian T. Fitzpatrick, who is an Associate Professor of Law at Vanderbilt University Law School.

Click here to view this article on the source site »

A 6th Circuit Court of Appeals decision holding that a Michigan law banning affirmative action in college admissions violated the U.S. Constitution has been generating controversy among legal scholars and practitioners since it was released earlier this month.

On July 1, the 6th Circuit struck down Proposal 2, a 2006 constitutional amendment in Michigan that prohibited the use of affirmative action in college admissions, employment, and contracting, as a violation of the Equal Protection Clause's prohibition against racial discrimination, reports the Detroit Free Press. According to the court, the amendment unconstitutionally placed special burdens on minorities by manipulating the political process.

Click here for the 6th Circuit's decision in Coalition to Defend Affirmative Action v. Regents of the Univ. of Mich.

Detroit Attorney George Washington, who represented the coalition in the case, said of the ruling:

Affirmative action is now legal in college admissions in Michigan, and that means thousands of black, Latin and Native American students who would have been excluded from our best undergraduate and graduate programs will now be admitted.

In The Daily Caller, however, Prof. Gail Heriot of the University of San Diego School of Law argues that every law causes a political restructuring that may affect the ability of certain groups to lobby for special treatment. The decision, she writes, is the result of legislating from the bench: the judges did not like the amendment, would not have voted for it had they lived in Michigan, and therefore struck it down.

The amendment was enacted in the aftermath of a pair of 2003 cases on affirmative action in higher education in Michigan: Gratz v. Bollinger and Grutter v. Bollinger. In these cases, the Supreme Court effectively ruled that it was constitutional for a state to discriminate on the basis of race in college and law school admissions to achieve diversity as long as it did not do so through a rigid quota system.

Michigan Attorney General Bill Schuette has indicated that he will appeal the present case to the 6th Circuit for an en banc hearing.