FedSoc Blog

The New York Times draws attention to a forthcoming law journal article by Professors David S. Law of Washington University in St. Louis and Mila Versteeg of the University of Virginia.  According to the authors' summary:

[A]mong the world’s democracies … constitutional similarity to the United States has clearly gone into free fall. Over the 1960s and 1970s, democratic constitutions as a whole became more similar to the U.S. constitution, only to reverse course in the 1980s and 1990s. The turn of the twenty-first century, however, saw the beginning of a steep plunge that continues through the most recent years for which we have data, to the point that the constitutions of the world’s democracies are, on average, less similar to the U.S. Constitution now than they were at the end of World War II.

The paper's timing is apropos given Justice Ginsburg's recent comments on the relative merits of the South African and U.S. constitutions.

On Thursday, February 16th, the Federalist Society's Financial Services & E-Commerce Practice Group and The American Bankers Association will present a panel discussion on "The Volcker Rule: Curbing Risk or Curbing the Economy?"

When President Obama, with former Federal Reserve Board Chairman Paul Volcker at his side, announced his intention to seek legislation implementing the "Volcker Rule" he described it as necessary to reduce excessive risk taking by banks.  Easier to describe than implement, the Volcker Rule, as incorporated in the Dodd-Frank Act, was envisioned to prohibit the use of insured deposits by commercial banks in their own trading in the markets (so-called "proprietary trading") or to support various types of investment funds.  In practice, the proposed regulation is an incomplete first attempt to give life to the new rule, seeking public input on some 1,400 questions from the public in addition to input on the details of the proposed regulation.  Advocates and critics of the rule will discuss the value of the rule itself as well as regulatory efforts to address the details of implementation.  Proponents claim that it is necessary for future stability of the banking industry, while critics assert that it will not only harm the industry but industry customers as well.

Confirmed Speakers to Date: 

• Mr. Randall D. Guynn, Davis Polk & Wardwell LLP
• Ms. Sarah A. Miller, Institute of International Bankers 
• Ms. Coryann Stefansson, PricewaterhouseCoopers LLP  
• Mr. Mark E. Van Der Weide, Division of Banking Supervision and Regulation, Board of Governors of the Federal Reserve System  
  

Date: Thursday, February 16, 2012
Time: noon-2:00 pm

On January 17th, the Supreme Court heard oral argument in Filarsky v. Delia. The question in the case is whether a lawyer retained to assist government employees with an internal affairs investigation may, in a subsequent lawsuit against the lawyer arising out of the attorney’s conduct during the investigation, assert the “qualified immunity” defense available to government employees in such circumstances.

To discuss the case, we have Scott Martin, an associate in the D.C. office of Gibson, Dunn, and Crutcher.

Click here to view this article on the source site »

Justice Ginsburg is not the only member of the Supreme Court recently to have publicly expounded on constitutional matters.  On Saturday, Justice Scalia held a wide-ranging discussion of his views at the American Bar Association's midyear meeting in New Orleans.  The ABA Journal reports:

Scalia answered questions posed by Boston University law dean emeritus Ronald Cass and then from the audience. Topics included abortion, religion, lawyer pay and the justice's recent opinion on police use of a GPS device to track a criminal suspect.

The only topic that was off limits—and it was Cass who said Scalia couldn’t answer—was on the Constitution and same-sex marriage.

Scalia didn’t hesitate when an audience member asked him whether his Catholicism influenced his opposition to Roe v. Wade. The answer, Scalia said, is no. If he followed religious doctrine, he would agree with those who say the Constitution requires states to ban abortion. Scalia said he believes the Constitution says nothing about abortion, and states can permit or ban it based on the will of the voters.

Scalia also took on the legal profession and the high pay scales that lure top students into the law. He noted he earns less money than his former law clerks who become first-year associates at law firms. What’s more, he said, they get a $250,000 signing bonus. “There’s something wrong with a system where getting someone just a little bit brighter is worth that kind of money,” he said.

Scalia didn’t retreat from previous assertions that too many of America’s best students are going to law school. He would instead like to see more of the top students going into professions such as engineering and teaching. “Society cannot afford to have such a huge proportion of its best minds going into the law,” he said.

Scalia also elaborated on his recent opinion in the GPS case, United States v. Jones. The Supreme Court opinion was unanimous in finding that the police conduct—installing a GPS and using it to track a suspect for 28 days—was a search within the meaning of the Fourth Amendment. But the justices split 5-4 on the reasoning.

Since the case was decided on Jan. 23, experts have differed over how much protection it will give to shorter-term surveillance and whether the decision would require police to get a warrant. The Volokh Conspiracy says the dueling opinions can be read in so many different ways that they are a something of a “Rorschach test.” . . .

Scalia expounded on his views that the Constitution’s creation of a decentralized form of government is even more important than the Bill of Rights. “It’s that inconvenient system that makes it difficult to govern, but also makes it difficult to centralize power,” he said.

Scalia was chair of the ABA Section of Administrative Law and Regulatory Practice in 1981-82 and chair of the Section Officers Conference in 1982-83. He concluded his remarks with a reference to the ABA. “I’ve been away from the ABA a long time, and I’m glad to be back,” he said.

Justice Ruth Bader Ginsburg has stirred up some controversy by recommending in an interview that Egypt look to the South African constitution as a model, not that of the United States.  According to ABC News:

Asked by the English-speaking interviewer whether she thought Egypt should use the Constitutions of other countries as a model, Ginsburg said Egyptians should be “aided by all Constitution-writing that has gone on since the end of World War II.”

“I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012. I might look at the Constitution of South Africa,” says Ginsburg, whom President Clinton nominated to the court in 1993. “That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary. … It really is, I think, a great piece of work that was done. Much more recent than the U.S. Constitution.”

Ginsburg, who spent her career before taking the bench advocating for gender equality, praised the U.S. Constitution and the founders, saying, “we were just tremendously fortunate in the U.S. that the men that met in Philadelphia were very wise.” But “it’s true that they were lacking one thing, that is there were no women as part of the Constitutional Convention, but there were women around who sparked the idea.”

What's so special about South Africa's constitution?  Joshua Keating explains at Foreign Policy:

What makes the post-apartheid document, which came into effect in 1997, so unique, is its inclusion of positive rights. In addition to freedom from discrimination -- including on the basis of sexual orientation, disability or religion -- and freedom of speech, under chapter two of the constitution, South Africans have the right to "make decisions concerning reproduction," "form a political party," or "form and join a trade union."

Even more notable, the [constitution] requires the state to enact policies that minimize inequality:

The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.

It also stipulates that citizens have the right to housing and adequate healthcare. 

Needless to say, the South African state is often in violation of many of these goals, but the argument for the constitution is that it gives citizens legal recourse to demand government action on  economic matters. It's also the case that a constitution that essentially includes an explicit guarantee of abortion rights, mandates government-provided healthcare, and encourages income redistribution, is something of a Tea Party dystopia. 

Ginsburg is not alone in her admiration of the South African model. Cass Sunstein, the legal scholar who current runs the White House's Office of Information and Regulatory Affairs, has called it ''the most admirable constitution in the history of the world.'"

Professor Eugene Volokh defends Justice Ginsburg's remarks against the criticisms of Mathew Staver, Founder and Chairman of Liberty Counsel and Dean of Liberty University School of Law: “For a sitting U.S. Supreme Court Justice to speak derisively about the Constitution she is sworn to uphold is distressing, to say the least. Justice Ginsburg's comments about our Constitution undermine the Supreme Court as an institution dedicated to the rule of law, as well as our founding document.”   Volokh responds:

This criticism strikes me as quite misplaced. Justice Ginsburg swore an oath to uphold the U.S. Constitution, and I suspect she thinks that the U.S. Constitution, as interpreted by the U.S. Supreme Court and U.S. political practice, works pretty well in the U.S. But why should she (or we) think that the 1787 constitutional text, coupled with the 27 amendments that have come in fits and spurts since then, would necessarily work well for a completely different country today? . . . Nor do I think that there’s something disloyal or bad for American policy for an American Justice to make such statements to a foreign country. Rather, I think it’s just sensible and sensibly (not excessively or falsely) modest.

On January 18th, the Supreme Court upheld in Golan v. Holder Congress’s power under the Patent and Copyright Clause to grant copyrights to foreign authors for their works that had been in the public domain in the United States, often for decades. Congress had granted these copyrights as part of the enabling legislation pursuant to the 1994 round of the GATT agreements, according to which the U.S. was arguably required to grant copyrights to foreign authors if the authors’ works were still in copyright in their home countries.

Today at 1 p.m. EST, our intellectual property experts will host a teleforum to discuss the case and whether the Patent and Copyright Clause of the Constitution should allow granting copyrights to existing, public domain works, and more generally, what limitations the IP Clause and the First Amendment place on Congress when it passes IP laws. They will also discuss how the challenged law in Golan affects incentives to create and distribute inventive and artistic works, and what type of future IP laws Congress might pass given the license granted it by the Court in this case.  Please note that the teleforum is open to all dues-paying members of the Federalist Society.

Featuring:

• Prof. Adam Mossoff, George Mason University School of Law
• Prof. Christopher Newman, George Mason University School of Law
• Prof. David Olson, Boston College Law School

Professor Newman recently discussed the decision in a SCOTUScast, while this past weekend Professor Olson published an op-ed article on the case in the Washington Examiner:

Imagine being director of a children's music camp that for decades has performed Prokofiev's "Peter and the Wolf," when suddenly, Congress decrees that you may not perform that music anymore.

Or imagine being a museum curator and suddenly being told that you must remove prints by Picasso and Escher that you've displayed for years.

Sound far-fetched? Congress did just this in 1994 when it granted copyrights to thousands of foreign authors for works that had been uncopyrighted in the United States for decades, and thus free for all to use.

Recently, in Golan v. Holder, the Supreme Court held, surprisingly, that it was perfectly all right for Congress to do this.

The plaintiffs in Golan -- teachers, orchestra conductors, and film archivists -- argued that the Constitution restricts Congress to granting copyrights only "to promote the progress of science."

By "promoting ... science" the Founders meant the creation and dissemination of knowledge. The plaintiffs argued that Congress' grant of copyrights to thousands of existing works obviously did not promote their creation, and that suddenly putting price tags on these previously free works limited, rather than enhanced, their dissemination.

The government defended the legislation, arguing that Congress was required to pass it by the 1994 General Agreement on Tariffs and Trade treaty. But even if this was so, treaties are inferior to the Constitution, and thus cannot give Congress the power to do something that the Constitution limits.

Unfortunately, the Supreme Court never really discussed what limits the Constitution's words "promote the progress" create. Rather, the court asserted that copyright laws need not be limited to encouraging the creation of new works; the court insisted they may also promote the dissemination of existing works.

On January 10th, the Supreme Court heard oral argument in FCC v. Fox.  The question in the case is whether the Federal Communications Commission’s standards for indecency are too vague to be constitutional.

We have Erik Jaffe, a Washington, D.C. attorney who specializes in appellate litigation, and Patrick Brennan, Associate Dean of Academic Affairs at the Villanova University School of Law, to discuss the case.

Click here to view this article on the source site »

On January 23, the Supreme Court announced its decision in Reynolds v. United States.  The case concerned whether the Sex Offender Registration and Notification Act (SORNA) requires an offender who was convicted before the passage of SORNA to register under it even though the legislation appears to leave that determination to the U.S. attorney general.  A lower court determined that SORNA itself required pre-SORNA offenders to register even if the attorney general had not yet deemed that requirement applicable to them.

In an opinion penned by Justice Breyer, the Supreme Court reversed the lower court’s decision and remanded the case for further proceedings.  By a vote of 7-2, the Court held that SORNA’s registration requirements, properly interpreted, do not apply to pre-SORNA offenders until the attorney general so specifies.  Justice Scalia filed a dissenting opinion, which was joined by Justice Ginsburg.

To discuss the case, we have Michael DeBow, a professor at the Samford University Cumberland School of Law.

Click here to view this article on the source site »

On March 2nd and 3rd, Stanford Law School will be hosting the 2012 Federalist Society National Student Symposium on the theme "Bureaucracy Unbound: Can Limited Government and the Administrative State Co-Exist?"  

We are delighted to announce that Senator Mike Lee of Utah will be the keynote speaker at the Symposium Banquet.

Please note that a generous 50% travel scholarship is being offered for attending student members. Students wishing to receive the scholarship must be registered members of the Federalist Society's national organization (information on becoming a member or renewing your membership is available here). We encourage students to request additional funding from their school administrations.

Here is the schedule:

FRIDAY, MARCH 2, 2012

Registration
1:00–4:30 p.m.
Hoover Lawn

Introductory Remarks
6:45 p.m.
Cemex Auditorium

Panel 1: The Rule of Law and the Administrative State
7:00 p.m. - 8:45 p.m.
Cemex Auditorium

The rule of law, whatever that term describes, is one of the central concepts in Anglo-American jurisprudence. Does the administrative state, either in its operation or in the legal moves necessary for its validation, undermine or support the rule of law? Does modern governmental administration, and modern conditions of life, require some redefinition of the rule of law? Is there a relationship between the rule of law and the separation of powers, and if so, how does the administrative state affect that relationship? This panel, in short, will explore how the administrative state relates to fundamental jurisprudential principles.

Panelists:

• Prof. David Barron, Harvard Law School
• Prof. Richard Epstein, New York University School of Law
• Hon. Brett Kavanaugh, U.S. Court of Appeals, District of Columbia Circuit
• Prof. Peter Shane, The Ohio State University Law School
• Moderator: Hon. Carlos Bea, U.S. Court of Appeals, Ninth Circuit

Cocktail Reception
9:00 p.m.- 10:30 p.m.
Rehnquist Courtyard

SATURDAY, MARCH 3, 2012

Continental Breakfast
8:00 a.m. – 9:00 a.m.
Cemex Lawn

Panel 2: Balancing Checks and Efficiency: Gridlock, Organized Interests, and Regulatory Capture
9:00 a.m.- 10:45 a.m.
Cemex Auditorium

The administrative state is often defended as a necessary response to modern conditions that make governance through ordinary legislation virtually impossible. Is the administrative process in fact more efficient than legislation (and what is meant in this context by “efficient”)? Do any benefits from the administrative process come at the expense of other values? If the legislative process is subject to gridlock, is gridlock all bad? If capture or influence by interest groups is a problem, is it likely to be a worse problem in agency or legislative settings?

Does congressional abdication contribute to bureaucratic sclerosis, which makes it difficult to start and maintain businesses? Finally, what role do the Court's doctrines play at the intersection of these questions? Is Chevron deference to agencies good? Does the president's control make the administrative state better or worse? Do the Court's doctrines in Bowsher and Chadha give agencies too much power?

Panelists:

• Prof. David Engstrom, Stanford Law School
• Hon. C. Boyden Gray, Former White House Counsel 
• Prof. Lisa Heinzerling, Georgetown University School of Law
• Prof. Michael W. McConnell, Stanford Law School
• Moderator: Dean Larry Kramer, Stanford Law School 

Panel 3: Czars, Libya, and Recent Developments: Perspectives on Executive Power
11:00 a.m.- 1:00 p.m.
Cemex Auditorium

This panel will address the role of Executive branch officials in making high-level policy decisions, and their relationship to Congress. This is particularly relevant in the context of two recent debates: can the President ignore congressional attempts to strip funding from high-level officials who are not confirmed by the Senate? Is the Obama administration’s use of “czars” constitutional? Moreover, what is the power of the Executive branch to start a war without any authorization from Congress?

Panelists:

• Prof. Mariano-Florentino Cuellar, Stanford Law School
• Prof. John Harrison, University of Virginia Law School
• Prof. Sandy Levinson, University of Texas Law School
• Prof. John Yoo, Berkeley Law School
• Moderator: Hon. Thomas Griffith, U.S. Court of Appeals, District of Columbia Circuit

Lunch
1:00 p.m.- 2:30 p.m.
Cemex Lawn

Debate: The Constitutionality of the Affordable Care Act
2:30 p.m. -3:45 p.m.
Cemex Auditorium

This debate will focus on the constitutionality of the Affordable Care Act. While specific attention will be given to administrative law issues, including the constitutionality of giving out compliance waivers and of medical expert boards, the discussion will be free-ranging and address all constitutional questions of interest.

Debaters:

• Prof. Randy Barnett, Georgetown University School of Law
• Prof. Pamela Karlan, Stanford Law School
• Moderator: Hon. Sandra Ikuta, U.S. Court of Appeals, Ninth Circuit

Panel 4: Technology and Regulation
4:00 p.m. - 5:45 p.m.
Cemex Auditorium

Being in Silicon Valley, Stanford is known for its strong focus on intellectual property law and technology more broadly. This panel seeks to ask: what is the relationship between technology and the administrative state? Does technological progress require regulatory guidance? This panel will also consider to what degree development in technology in recent years has been slower than anticipated and whether the administrative state has been an asset or a hindrance to the effective utilization of technology.

Panelists:

• Prof. Richard Epstein, New York University School of Law
• Prof. Anthony Falzone, Stanford Center for Internet and Society
• Prof. Mark Lemley, Stanford Law School
• Mr. Peter Thiel, President, Clarium Capital
• Hon. Ted Ullyot, General Counsel, Facebook
• Moderator: TBD

Cocktail Reception
6:00-7:00 p.m.
Arrillaga Center for Sports and Recreation

Banquet
7:00-10:00 p.m.
Arrillaga Center for Sports and Recreation

• Hon. Michael S. Lee, United States Senate

Registration details:

Click here for the 2012 Student Symposium Web Site

Registration includes copies of Symposium materials, refreshments, the Friday reception, and the Saturday lunch. Please note that the Saturday Banquet (featuring Senator Lee) is an additional cost. Associated fees are as follows:

Student Registration Fees

• Symposium Registration Fee: $10
• Symposium Registration with Banquet Fee: $50

Non-Student Fees

• Symposium Registration Fee: $25
• Symposium Registration with Banquet Fee: $100

Additional Information:

For information regarding lodging, please click here.
For information regarding travel and reimbursements please click here.

At Liberty Law Blog, Mike Rappaport, professor at University of San Diego law school, weighs in on The New York Times' change of position on filibusters:

I don’t think there is anything unconstitutional or improper about filibustering nominees.  Nor do I believe the Senate should necessarily vote to confirm qualified nominees if they disagree with the nominee’s legal philosophy.  There is nothing in the Constitution that requires the Senate to defer to the President.

That said, I believe the best arrangement governing nominees is as follows: Lower court judges should be subject to a majority confirmation rule.  Thus, they should not be subject to being filibustered.  Supreme Court Justices, however, should be subject to a supermajority rule for confirmation.  They have enormous power and there is a benefit from having the more centrist justices that a supermajority rule would produce.  I defend this arrangement in these two articles written with John McGinnis.

This arrangement should be adopted through an agreement by both parties and now would be a good time to do so.   . . . [N]o one knows who will win the next Presidential election or hold a majority in the Senate.  Thus, an agreement to establish the arrangement in January 2013 would be possible if there were support for it.  But there is no real support for a supermajority rule for Supreme Court appointments.  I don’t even think there is Senate support to eliminate filibusters of lower court judges.

In 2003, the Federalist Society published a white paper on filibusters and the constitution authored by Reid Alan Cox, Tammi Kannar, Allyson Newton Ho, and Evan Rikhye.  

You might also wish to read the transcript of the 2003 hearing before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Property Rights on the subject “Judicial Nominations, Filibusters, and the Constitution: When a Majority Is Denied Its Right to Consent.”  Among the speakers are Steven G. Calabresi, John C. Eastman, Bruce Fein, Michael Gerhardt, Marcia D. Greenberger, and Douglas W. Kmiec.

On January 11th, the Supreme Court announced its decision in Perry v. New Hampshire.  The question was whether, in a criminal case, the Due Process Clause requires a court to evaluate the reliability of an eyewitness identification of the defendant when the circumstances under which the identification occurred were suggestive, regardless of how those circumstances came about. The lower court rejected the defendant’s argument and concluded that a court is required to assess the reliability of identification evidence only when law enforcement employs suggestive identification techniques.

In an opinion delivered by Justice Ginsburg, the Court affirmed the lower court decision 8-1.  Where there is no improper law enforcement activity involved, the Court held, it suffices to test reliability through the normal rights and opportunities afforded for that purpose, such as the presence of counsel at post-indictment lineups and vigorous cross-examination.  Justice Thomas wrote an opinion concurring in the judgment, and Justice Sotomayor filed a dissenting opinion.

To discuss the case, we have Jessie Liu, a partner at Jenner & Block.

Click here to view this article on the source site »