FedSoc Blog

Iowa Employment Lawsuit Tests Implicit Bias Theory


by Publius
Posted February 20, 2012, 9:16 AM

The AP reports that African-American state employees and job applicants in Iowa are suing the state government for employment discrimination on a new theory.  The basis of their claim is the Implicit Association Test, a measure in social psychology that allegedly finds that most whites have an unconscious bias against African-Americans:

Experts say the case is the largest class-action lawsuit of its kind against an entire state government's civil service system, and tests a legal theory that social science and statistics alone can prove widespread discrimination.

The plaintiffs — up to 6,000 African-Americans passed over for state jobs and promotions dating back to 2003 — do not say they faced overt racism or discriminatory hiring tests in Iowa, a state that is 91 percent white. Instead, their lawyers argue that managers subconsciously favored whites across state government, leaving blacks at a disadvantage in decisions over who got interviewed, hired and promoted. . . .

University of Washington psychology professor Anthony Greenwald, an expert on implicit bias who testified on behalf of the plaintiffs, said the decision will be important nationally because similar cases against corporations have usually been dismissed or settled before trial.

Scholars and employment lawyers have shown a growing interest in implicit bias in the last several years, after Greenwald and other scientists developed the Implicit Association Test to test racial stereotypes. Their research found an inherent preference for whites over blacks — in up to 80 percent of test-takers and among many people who do not consider themselves racist.

For an academic critique of the Implicit Association Test, see Prof. Hal Arkes and Prof. Philip Tetlock's paper "Attributions of Implicit Prejudice, or 'Would Jesse Jackson "Fail" the Implicit Association Test?'” Tetlock and Prof. Amy Wax also questioned the test in an op-ed.

Categories: External Articles

New SCOTUScast: Bluman v. FEC


by SCOTUScaster
Posted February 17, 2012, 4:07 PM

On January 9, the Supreme Court announced its decision in Blumen v. FEC.  The question was whether a federal statute that prohibits foreign nationals (who in this case were in the U.S. on temporary work visas) from making contributions to candidates or to political parties, or from making express advocacy expenditures with respect to U.S. elections, violated these persons’ First Amendment rights.  A three-judge panel in the lower court rejected the foreign nationals’ claim that their rights had been violated.  In a one-sentence order, the Supreme Court unanimously affirmed the lower court’s judgment.

To discuss the case, we have Allison Hayward, Vice President of Policy at the Center for Competitive Politics.

Click here to view this article on the source site »

Categories: SCOTUScasts

The Constitutionality of New York’s Rent Control Laws


by Justin Shubow
Posted February 17, 2012, 7:30 AM

Writing in the Washington Post, George Will calls for the Supreme Court to address the constitutionality of New York's rent-control laws:

James and Jeanne Harmon reside in and supposedly own a five-story brownstone on Manhattan’s Upper West Side, a building that has been in their family since 1949. But they have, so to speak, houseguests who have overstayed their welcome by, in cumulative years, more than a century. They are the tenants — the same tenants — who have been living in the three of the Harmons’ six apartments that are rent controlled.

The Harmons want the Supreme Court to rule that their home has been effectively, and unconstitutionally, taken from them by notably foolish laws that advance no legitimate state interest. The court should.

The Federalist Society is now offering a Practice Groups podcast on the very same case:

In March 2011, the Second Circuit Court of Appeals issued summary judgment in Harmon v. Markus, a challenge to New York's rent stabilization law by Mr. John Harmon, whose townhouse has been occupied for years by tenants paying rent equal to about 60% of market value. The Second Circuit ruled that "government regulation of the rental relationship does not constitute a physical taking" in light of the Supreme Court precedent, and that Mr. Harmon was therefore not entitled to just compensation. The Supreme Court has asked New York City and the tenants to file a response to the certiorari petition filed by Mr. Harmon. On this previously recorded conference call, Prof. Richard Epstein provides analysis of the case and rent control statutes as they relate to the Takings Clause and answers questions from the callers.


Prof. Richard Epstein, New York University School of Law

Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

Behavioral Law and Economics and its Implications for Liberty


by Justin Shubow
Posted February 16, 2012, 4:23 PM

Liberty Law Blog is hosting an interesting forum on behavioral eonomics:

Behavioral economics is one of the most significant developments in economics over the past 30 years.  The field combines economics and psychology to produce a body of evidence that individual choice behavior departs from that predicted by neoclassical economics in a number of decisionmaking situations.  These departures from rational-choice behavior are said to be the result of the individual’s “cognitive biases,” that is, systematic failures to act in one’s own interest because of defects in one’s decisionmaking process.  The documentation of these cognitive biases in laboratory experiments has been behavioral economics’ primary contribution to microeconomics.

The forum contains the following responses:

Categories: External Articles

Tonight in DC: ObamaCare and the Right of Conscience


by Publius
Posted February 16, 2012, 12:14 PM

FedSoc's DC Young Lawyers Chapter will be hosting a talk tonight on "ObamaCare and the Right of Conscience" feauting Matt Bowman, legal counsel at the Alliance Defense Fund.

In 2003, Bowman earned his J.D. from Ave Maria School of Law, where he was class valedictorian, graduated summa cum laude, and received the St. Thomas More Award for Virtue and Academic Excellence. Prior to serving with ADF, he clerked for several federal judges in the U.S. Court of Appeals for the Third Circuit, including The Honorable Samuel A. Alito, Jr., and The Honorable Michael A. Chagares. Bowman also clerked for The Honorable Late John M. Roll in the U.S. District Court for the District of Arizona.

The event details:

Date: Thursday, February 16, 2012

Time: 6:30 p.m. - 8:30 p.m.

Location: Smith & Wollensky, 1112 19th St. NW, Washington, DC 20036

Cost: $20 per person

Drinks and heavy hors d'oeuvres will be served.

Online registration is now closed, but on-site registrations will be accepted.

Categories: Upcoming Events

Senator Rand Paul to Speak at FedSoc Louisville Lawyers Chapter


by Publius
Posted February 15, 2012, 5:32 PM

On Wednesday, February 22, U.S. Senator from Kentucky Rand Paul will be speaking to the Federalist Society's Louisville Lawyers Chapter.  His subject is "Congressional Overreach: The Federal Health Insurance Mandate."

The details:

Start : Wednesday, February 22, 2012 12:00 PM

End   : Wednesday, February 22, 2012 1:00 PM

Location: Vincenzo's, Fifth & Market Streets

Registration details:

Cost: $15 for Federalist Society members, $25 for non-members

RSVP by February 20, 2012 to Mr. John K. Bush at jbush@bgdlegal.com or at:

3500 National City Tower
101 South Fifth Street
Louisville, KY 40202

Please make checks payable to "The Federalist Society."

Categories: Upcoming Events

Pew Publishes Report on Improving Voter Registration


by Justin Shubow
Posted February 15, 2012, 10:54 AM

The Pew Center on the States, an initiative involving eight states, has published its extensive report on voter registration, Inaccurate, Costly, and Inefficient.  Among its findings:

  • At least 51 million eligible citizens remain unregistered—more than 24 percent of the eligible population. 
  • More than 1.8 million deceased individuals are listed as active voters.
  • Approximately 2.75 million people have active registrations in more than one state.
  • About 12 million records have incorrect addresses, meaning either the voters moved, or errors in the information make it unlikely any mailings can reach them.

Since 2010, election officials from several states have been working with Pew on plans to upgrade their voter registration systems using advanced technology. This new approach consists of three elements:

  • Comparing registration lists with other data sources, such as motor vehicle and National Change of Address records.
  • Implementing proven techniques and security protocols that use those data sources to better track and identify both inaccurate records.
  • Minimizing manual data entry by establishing ways voters can submit information online.

Categories: External Articles

ABA Announces 7th Annual Homeland Security Law Institute


by Justin Shubow
Posted February 14, 2012, 2:36 PM

The American Bar Association has announced its upcoming 7th Annual Homeland Security Law Institute.  The program will be held on March 22 & 23, 2012 at the Capital Hilton in Washington, D.C.

Here are the topics on the agenda:

• Executive Agency General Counsel Panel: A Look at Homeland Security Legal and Policy Issues
• Homeland Security: Regulatory and Legislative Developments 2012
• Homegrown Threats and Radicalization
• Homeland Defense and Civil Support: The Role of the Military Within Our Own Borders
• Cargo & Supply Chain Security
• Emerging Compliance Issues for Government Contractors: An In-House Perspective
• The Law Enforcement Agenda 2012
• Homeland Security & Information Sharing: Perspectives from Federal, State & Local Governments and the Private Sector
• Private Civil Litigation Against Alleged Terrorist Sponsors
• Volatility Overseas and Its Affect on America’s Homeland Security
• Pressing Challenges in Immigration Law and Policy
• National Preparedness: Have 10 Years and Billions of Dollars Made our Communities Better Prepared?
• Cybersecurity Developments in the Federal Government and Private Sector
• Two Ounces of Prevention: The SAFETY Act and PS PREP - Voluntary Programs and to Mitigate Liability
• Careers in Homeland Security & National Security - The Academic Path, Etc.
• Chemical Facility Anti-Terrorism Standards (CFATS)
• International Issues: Spotlight on FCPA & OFAC
• CFIUS & Foreign Investments

The keynote speakers include former U.S. Attorney General Michael Mukasey, former Department of Homeland Security Secretary Michael Chertoff together with former CIA Director General Michael Hayden, Assistant Secretary to International Affairs and Chief Diplomatic Officer to DHS the Honorable Alan Bersin, and James (Jim) Carafano from The Heritage Foundation.

To register, click here.

Categories: Upcoming Events

Judge Scalia Makes Up with University of Chicago Law School


by Justin Shubow
Posted February 14, 2012, 11:25 AM

In what some considered a sign of rapprochment, in December Justice Clarence Thomas made a historic visit to Yale Law School, his alma mater.  Now Justice Antonin Scalia has improved his relations with University of Chicago Law School, where he used to be a professor.  The Chicago Sun-Times reports:

U.S. Supreme Court Associate Justice Antonin Scalia kissed and made up with the University of Chicago Law School, where he used to teach, giving a speech Monday at which he defended his ruling against gun control and urged students to settle for a job at a law firm in Cleveland if it would let them work reasonable hours.

Three years ago, Scalia told a conservative Federalist Society audience in Chicago he “regrets” the turn to the left the University of Chicago Law School took after he departed in 1982: “I don’t think the University of Chicago is what it was in my time. I would not recommend it to students looking for a law school as I would have years ago. It has changed considerably and intentionally. It has lost the niche it once had as a rigorous and conservative law school.”

But Scalia was all verbal hugs and kisses Monday, telling an auditorium full of students, “I’m glad to be back here. A whole lot of what I am intellectually is attributable to this place. The University of Chicago is one of two or three of the most formidable intellectual institutions in the world; a really impressive place. And you’re lucky to be here.”

Dean Michael Schill introduced Scalia by saying, “Justice Scalia is very much a part of the family. I could not be prouder than I am today in welcoming him back home.”

As a professor, Scalia became faculty advisor to the University of Chicago’s fledgling chapter of the Federalist Society, the conservative legal group that would grow to help shape the modern judiciary, getting its members such as Scalia appointed to many of the United States’ highest courts.

Categories: External Articles

Justice Ginsburg Questions Timing of Roe v. Wade


by Justin Shubow
Posted February 13, 2012, 5:28 PM

The AP reports that Justice Ginsburg, who recently made controversial remarks on constitutionalism around the world, said that history might have been different had the Supreme Court been more "restrained" in Roe v. Wade:

Supreme Court Justice Ruth Bader Ginsburg suggested Friday that her predecessors on the high court mistimed the milestone 1973 Roe v. Wade case that legalized abortion nationwide.

"It's not that the judgment was wrong, but it moved too far too fast," Ginsburg told a symposium at Columbia Law School marking the 40th anniversary of her joining the faculty as its first tenure-track female professor.

At the time of Roe v. Wade, abortion was legal on request in four states, allowed under limited circumstances in about 16 others, and outlawed under nearly all circumstances in the other states, including Texas - where the Roe case originated.

Alluding to the persisting bitter debate over abortion, Ginsburg said the justices of that era could have delayed hearing any case like Roe while the state-by-state process evolved. Alternatively, she said, they could have struck down just the Texas law, which allowed abortions only to save a mother's life, without declaring a right to privacy that legalized the procedure nationwide.

"The court made a decision that made every abortion law in the country invalid, even the most liberal," Ginsburg said. "We'll never know whether I'm right or wrong ... things might have turned out differently if the court had been more restrained."

Categories: External Articles

What if Kelo v. City of New London Had Gone the Other Way?


by Justin Shubow
Posted February 13, 2012, 1:24 PM

At the Volokh Conspiracy, George Mason University law professor Ilya Somin highlights his new paper “What if Kelo v. City of New London Had Gone the Other Way?”  According to the abstract:

Kelo v. City of New London is one of the most controversial decisions in U.S. Supreme Court history. The Kelo Court held that the Public Use Clause of the Fifth Amendment allows government to condemn private property and transfer it to other private parties for purposes of “economic development.” This Article considers the question of what might have happened if the Supreme Court decided Kelo v. City of New London in favor of the property owners. Such counterfactual analysis may seem frivolous. But it is, in fact, useful in understanding constitutional history. Any assessment of the impact of a legal decision depends on at least an implicit judgment as to the likely consequences of a ruling the other way. Analysis can be improved by making these implicit counterfactual assumptions clear and systematically considering their implications.

Part I briefly describes the Kelo case and its aftermath, focusing especially on the massive political backlash. That backlash led to numerous new reform laws. However, many of them turned out to be largely symbolic. Part II discusses the potential value of a counterfactual analysis of Kelo. It could help shed light on a longstanding debate over the effects of Supreme Court decisions on society. Some have argued that court decisions have little impact, mostly protecting only those rights that the political branches of government would protect of their own accord. Others contend that this pessimistic view underrates the potential effect of Supreme Court decisions.

Part III considers the possible legal effect of a ruling in favor of the property owners. Such a decision could have taken several potential forms. One possibility is that the Court could have adopted the view advocated by the four Kelo dissenters: that economic development condemnations are categorically forbidden by the Public Use Clause. This would have provided strong protection to property owners and significantly altered the legal landscape. On the other hand, the Court could easily have decided in favor of the property owners on one of two narrower grounds. Such a ruling would have led to much weaker protections for property owners.

Part IV weighs the potential political impact of a decision favoring the property owners. Such an outcome might have forestalled the massive political backlash that Kelo caused. Ironically, a narrow ruling in favor of the owners that did not significantly constrain future takings might have left the cause of property rights worse off than defeat did. On the other hand, a strong ruling categorically banning economic development takings would likely have done more for property rights than the backlash did, especially considering the uneven nature of the latter. Furthermore, political movements sometimes build on legal victories, as well as defeats, as happened in the case of the Civil Rights movement in the wake of Brown v. Board of Education. It is possible that property rights advocates could have similarly exploited a victory in Kelo.

In 2010, Professor Somin appeared on a FedSoc panel on Kelo at the University of Chicago.  His remarks, "Eminent Domain After Kelo," can be found here.

Categories: External Articles

New SCOTUScast: National Meat Association v. Harris


by SCOTUScaster
Posted February 10, 2012, 3:44 PM

On January 23, the Supreme Court announced its decision in National Meat Association v. Harris. The question was whether the Federal Meat Inspection Act (FMIA) preempts a California statute prescribing what slaughterhouses must do with pigs that are unable to walk.  The lower court determined that the state statute did not regulate the inspection or slaughtering process itself, and therefore was not preempted by the FMIA.

In an opinion delivered by Justice Kagan, the Supreme Court unanimously voted to reverse the decision of the lower court, holding the FMIA does indeed preempt the California statute at issue.

To discuss the case we have John Ohlendorf, an Olin-Searle-Smith Fellow in Law at Northwestern University School of Law.   

Click here to view this article on the source site »

Categories: SCOTUScasts

Chertoff on Cloud Computing and the Looming Global Privacy Battle


by Publius
Posted February 10, 2012, 11:15 AM

Writing in The Washington Post, Michael Chertoff warns of the coming international legal challenges regarding privacy and cloud computing.

A grave threat is said to be stalking Europe. No, it isn’t the financial crisis and the potential demise of the euro. It’s the “rapacious” U.S. approach to privacy — which portends, for those engaged in the development of cloud architecture, a coming “clash” of privacy laws.

According to Viviane Reding, the European Union’s justice commissioner, cloud-based companies that collect personal data are violating fundamental human rights. “We . . .believe that companies who direct their services to European consumers should be subject to EU data protection laws. Otherwise, they should not be able to do business on our internal market,” Reding wrote in November. “This also applies to social networks with users in the EU. We have to make sure that they comply with EU law and that EU law is enforced, even if it is based in a third country and even if its data are stored in a ‘cloud.’  . . .

Simply put, the fundamental question about international Internet governance over the next decade is going to be whose law dictates control — and the Europeans are making a bold play to say that the answer is “Europe’s.”

This raises a challenge for the private sector and for governments: When the user is a private-sector company, the transition to cloud storage and processing services will create difficult questions over jurisdiction. Imagine you are a company, seeking to do business in Europe. What if a country outside of Europe — say, the one(s) where your servers are maintained — contends that its law also governs, and that law is inconsistent with Europe’s? And what about the law of the home country (say, the United States), where the data-storage provider is headquartered? The conflict of applicable laws will create great uncertainty; uncertainty breeds hesitancy and the loss of entrepreneurial vibrancy. In other words, conflicting legal and technical requirements have the potential to crush innovation.

Categories: External Articles

DC Young Lawyers Chapter Event Next Week: J. Christian Adams on the Obama Justice Dept.


by Justin Shubow
Posted February 09, 2012, 4:36 PM

The Federalist Society's DC Young Lawyers Chapter invites you to a reception and book signing with J. Christian Adams, author of Injustice: Exposing the Racial Agenda of the Obama Justice Department.

Start : Thursday, February 16, 2012 6:30 PM

End   : Thursday, February 16, 2012 8:30 PM

Location: Smith & Wollensky, 1112 19th Street NW, Washington, DC 20036

Registration details:

Cost: $20.00

Drinks and heavy hors d'oeuvres will be offered. Space is limited, so register online.

You must pre-register to attend. Books will be available for purchase and signing.

Categories: Upcoming Events

Analyzing the Ninth Circuit’s Prop 8 Ruling


by Justin Shubow
Posted February 09, 2012, 8:48 AM

The Ninth Circuit's striking down of Proposition 8, California's voter-approved ban on same-sex marriage, is receiving a great deal of commentary, including from the Sacramento Bee and Ed Whelan at NRO.  At the Volokh Conspiracy, Dale Carpenter discusses the 2-1 opinion  by Judge Stephen Reinhardt:

In contrast to Judge Walker’s maximalist opinion striking down Prop 8, it’s generally accepted that Judge Reinhardt’s opinion [in Perry v. Brown] was minimalist.

There’s a commonsense way in which the opinion is not at all minimalist. It reverses the results of a plebiscite, which followed the expenditure of $80 million and the mobilization of millions of voters. It brings full same-sex marriage to a state whose cultural, political, and legal influence on the rest of the country outstrips even its massive population. It’s by far the biggest prize (sorry, New York) in the fight over gay marriage. Advocates on both sides know this. Winning California is not the beginning of the end, but it is at least the end of the beginning.

In legal terms, as well, minimalism may not precisely describe the opinion.  Reinhardt decided that Prop 8 was unconstitutional on Equal Protection grounds only in the specific and unusual circumstances of California, which are not likely to be repeated: full rights and non-marital status given to same-sex couples, followed by court-granted marital status, followed by actual marriages, followed by popular denial of marital status but leaving in place full rights. Whether the opinion can really be cabined to apply only to these unique circumstances is doubtful.  Can you really say, as a colleague of mine commented today, that the state must move you from the middle of the bus to the front, but not from the back of the bus to the front? But suppose the decision really is a constitutional ticket good-for-this-ride-only (like the Supreme Court’s decision in Bush v. Gore). Minimalism is not the narrowest possible ground on which a court can rule.  It’s the narrowest plausible grounds on which a court can rule, with at least some theoretical underpinning that helps us understand it as a principled decision, even if a badly principled decision, rather than as simply an order.  The panel’s decision is not so much under-theorized in the way minimalists love; it hardly has any theory.  It is so minimalist one might call it minisculist.

Orin Kerr also weighs in:

Reading the blog and media reaction to Judge Reinhardt’s opinion for the Ninth Circuit in Perry v. Brown, it’s interesting how much it resembles the reaction to Judge Walker’s opinion at the District Court level. Most agree that both opinions were written solely for an audience of one, Justice Kennedy. In both cases, a lot of the reactions focus on whether the opinions successfully figured out a clever way to get Kennedy’s vote.

After Judge Walker’s opinion, for example, a lot of commenters thought Walker was particularly clever for announcing rather aggressive findings of fact that seemed to bleed over into the legal issues; the thought was that Walker could force the higher courts to see things his way because facts ordinarily are reviewed under the “clearly erroneous” standard instead of a de novo standard. After Reinhardt’s opinion, a lot of commenters have suggested that Reinhardt was particularly clever because he framed the issue narrowly under Romer, avoiding the broader questions of gay marriage.

I have no idea what the Supreme Court might do in the Perry case. But my own sense is that Judges Walker and Reinhardt are not quite as clever as some people seem to think. Or, at the very least, the reasoning of their opinions don’t really matter very much. First, I think it’s unlikely that the particular reasoning of either opinion will have a substantial influence on the Justices. The issues in Perry are extremely important, and they’re the kind of issues that force the Justices to fall back on first principles. The details of how the lower courts reached the results they reached matter a lot less in that kind of case than in an ordinary case. Consider how Judge Reinhardt dealt with Judge Walker’s extensive factual findings: He basically ignored them.


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