FedSoc Blog

SCOTUS Unanimously Rules to Protect Landowners’ Right to Take EPA to Court


by Justin Shubow
Posted March 21, 2012, 11:07 AM

A unanimous Supreme Court ruled today that landowners may take the Environmental Protection Agency to court as soon as they receive an EPA order to which they object.  SCOTUSblog summarizes the decision:

Making clear that the courts remain open for citizens who believe they are being “strong-armed” by the government, the Supreme Court on Wednesday gave property-owners a right to sue the U.S. Environmental Agency to make an immediate challenge to an EPA order to stop a development that the agency says threaten the nation’s waters.  Faced with such an order, the targets of the EPA need not wait until the agency chooses to sue them to enforce the order; they have a right, under the Administrative Procedure Act, to sue as soon as they receive an order to which they object, according to the unanimous decision.  More broadly, the ruling enhances citizens’ right generally to pick the time to mount a court challenge to government orders — provided that those orders are in a final form.

The decision, written by Justice Antonin Scalia, opens the federal courthouse door to an Idaho couple who own a .63-acre parcel of property close to Priest Lake, and plan to build a house on it.   EPA considered their property to be a “wetland,” and told them to stop the development, and restore the property to its former state — or face fines that the government said could reach $75,000 a day.  The EPA acted under the Clean Water Act, and it insisted — with the approval of lower courts — that the couple could not sue to challenge the order and had to wait for court review at the option of EPA.   That was the result the Court overturned in Sackett, et al., v. EPA, et al. (docket 10-1062).

On February 23, 2012, FedSoc's Environmental Law & Property Rights Practice Group hosted a teleforum on the Sackett case.  It featured the Pacific Legal Foudnation's Damien Schiff, counsel for the petitioners, and was moderated by Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society.

To listen to the podcast of the teleforum, click here.

The Progressive Case for Federalism


by Justin Shubow
Posted March 21, 2012, 10:49 AM

Writing in Democracy: A Journal of Ideas, Heather K. Gerken, professor at Yale Law School, puts forth what she believes to the progressive case for federalism:

Progressives are deeply skeptical of federalism, and with good reason. States’ rights have been invoked to defend some of the most despicable institutions in American history, most notably slavery and Jim Crow. Many think “federalism” is just a code word for letting racists be racist. Progressives also associate federalism—and its less prominent companion, localism, which simply means decentralization within a state—with parochialism and the suppression of dissent. They thus look to national power, particularly the First and Fourteenth Amendments, to protect racial minorities and dissenters from threats posed at the local level.

But it is a mistake to equate federalism’s past with its future. State and local governments have become sites of empowerment for racial minorities and dissenters, the groups that progressives believe have the most to fear from decentralization. In fact, racial minorities and dissenters can wield more electoral power at the local level than they do at the national. And while minorities cannot dictate policy outcomes at the national level, they can rule at the state and local level. Racial minorities and dissenters are using that electoral muscle to protect themselves from marginalization and promote their own agendas.

Progressives have long looked to the realm of rights to shield racial minorities and dissenters from unfriendly majorities. Iconic measures like the First and Fourteenth Amendments, the Civil Rights Act, and the Voting Rights Act all offer rights-based protections for minorities. But reliance on rights requires that racial minorities and dissenters look to the courts to shield them from the majority. If rights are the only protections afforded to racial minorities and dissenters, we risk treating both groups merely as what Stanford Law Professor Pam Karlan calls “objects of judicial solicitude rather than efficacious political actors in their own right.”

At the Volokh Conspiracy, Ilya Somin comments:

Much of Gerken’s argument is based on the simple but important point that groups that are relatively weak minorities at the national level often wield greater influence in state and local governments where they are a much higher proportion of the population. In these situations, political decentralization benefits minorities by shifting power to the level of government where they have more political clout.

This will not come as news to students of federalism in countries outside the US. Many federal systems were established in the first place precisely because some ethnic groups that are minorities at the national level are majorities in a province or state. Federalism therefore protects them against domination by the national majority. Canada, Switzerland, Spain, India, and many other federal systems are examples of this pattern.

In the United States, of course, this aspect of federalism has largely been ignored because we have had very few cases of states where a national minority was a majority within a single state. The Mormons in Utah are an important exception, but one that few federalism scholars have paid attention to. However, as Gerken points out, racial and other minorities have increasingly become majorities in some state and local governments.

ABA Backs Off Making Law Schools Report Graduates’ Salaries


by Justin Shubow
Posted March 21, 2012, 7:35 AM

The National Law Journal reports:

It looks as though the American Bar Association may not require law schools to disclose detailed graduate salary information after all.

The ABA's Council of the Section of Legal Education and Admission to the Bar on March 17 gave preliminary approval to a new accreditation standard that would require law schools to report additional details about their scholarship retention rates and the jobs that their graduates land.

But the council rejected a recommendation that it require law schools to report school-specific salary data. Transparency advocates said the omission would leave prospective students without important information about their earning prospects.

"This is the council's latest mistake in a string of mistakes," said Kyle McEntee, executive director of Law School Transparency, a nonprofit organization that pushes for better law school consumer information. "It's a pattern of consumer-disoriented information."

Walter Dellinger on the Conservative Case for the Individual Mandate


by Publius
Posted March 20, 2012, 3:16 PM

In contrast to C. Kevin Marshall's comments at the FedSoc panel today on ObamaCare, in this video, former solicitor general Walter Dellinger explains what he sees as conservative case for the individual mandate.

C. Kevin Marshall on the Most Powerful Argument Against ObamaCare’s Individual Mandate


by Publius
Posted March 20, 2012, 2:41 PM

Today the Federalist Society's Federalism & Separation of Powers Practice Group sponsored a panel discussion on "Obamacare in the Supreme Court." The panelists were: Prof. Randy E. Barnett, Georgetown University Law Center; Hon. Walter Dellinger, O'Melveny & Myers; Prof. Neal K. Katyal, Georgetown University Law Center; and Mr. C. Kevin Marshall, Jones Day. Stuart Taylor, Jr. served as the moderator.

In this video, Marshall sums up what he sees as the most powerful argument against the individual mandate in The Patient Protection and Affordable Care Act.

New SCOTUScast: Douglas v. Independent Living Center


by SCOTUScaster
Posted March 20, 2012, 11:20 AM

On February 22, the Supreme Court announced its decision in Douglas v. Independent Living Center of Southern California, et al.  The question in this series of cases was whether Medicaid providers and recipients can bring suit under the U.S. Constitution’s Supremacy Clause to enforce a federal Medicaid law.  In their view that law preempts state Medicaid statutes that would reduce payments to providers, and the U.S. Court of Appeals for the Ninth Circuit agreed.

In an opinion delivered by Justice Breyer, the Court by a vote of 5-4 vacated the Ninth Circuit decisions and remanded the cases for further proceedings.  Because a federal agency had approved the state statutes at issue during the course of the litigation, the Court held, the cases should be remanded to the Ninth Circuit for determination as to whether the parties’ dispute should be resolved under the Administrative Procedure Act.  Justices Kennedy, Ginsburg, Sotomayor and Kagan joined Justice Breyer’s opinion.  Chief Justice Roberts filed a dissenting opinion, which was joined by Justices Scalia, Thomas, and Alito.

To discuss the case, we have Rick Hills, who is the William T. Comfort III Professor of Law at New York University School of Law.

Click here to view this article on the source site »

Categories: SCOTUScasts

Supreme Court Addresses Benefits for Posthumously Conceived Children


by Justin Shubow
Posted March 20, 2012, 6:34 AM

The Supreme Court has taken up the issue of whether posthumously conceived children should receive Social Security benefits.  The Washington Post reports:

Robert and Karen Capato’s twins were born in 2003 — 18 months after Robert Capato’s death. And in its first review of “posthumous conception,” the ­Supreme Court on Monday struggled to align modern reproductive techniques to a federal law written in 1939.

In the end, the justices generally sounded disinclined to award Social Security survivor benefits to the Capato children. Theirs is among about 100 cases brought by children of artificial insemination born after the death of a father that the Social Security Administration has turned down.

But it was a tough slog through the details of a law that was written at a time when, as Justice Samuel A. Alito Jr. said, “they never had any inkling about the situation that has arisen in this case.”

Categories: External Articles

New SCOTUScast: Kiobel v. Royal Dutch Petroleum and Mohamad v. Rajoub


by SCOTUScaster
Posted March 19, 2012, 4:20 PM

On February 28th, the Supreme Court heard oral argument in Kiobel v. Royal Dutch Petroleum and Mohamad v. Rajoub.  Kiobel v. Royal Dutch Petroleum involves the Alien Tort Statute (ATS), which permits non-U.S. citizens to bring a lawsuit in federal court in order to seek relief for certain violations of international law.  The question is whether corporations, and not merely individuals, can be held liable in an ATS lawsuit--and whether that issue affects the jurisdiction of the court even to hear the case.  Mohamad v. Rajoub involves the Torture Victim Protection Act (TVPA), and presents a similar question: whether corporations, and not merely natural persons, can be held liable for violations of the TVPA.

On March 5, 2012, however, the Supreme Court placed the Kiobel case back on the calendar for re-argument, and directed the parties to brief whether and under what circumstances the ATS allows courts to address violations of the law of nations that occur outside the United States. 

To discuss the cases, we have Eugene Kontorovich, a professor at the Northwestern University School of Law.

Click here to view this article on the source site »

Categories: SCOTUScasts

NYT: DOJ Should Set National Standard on Exculpatory Evidence


by Justin Shubow
Posted March 19, 2012, 8:23 AM

The New York Times editorial board has weighed in on the finding of prosecutorial misconduct in the trial of the late Senator Ted Stevens:

The obligation of prosecutors to disclose evidence favorable to their adversaries is a cornerstone of justice. Yet in the conviction of Senator Stevens in 2008, vital evidence was concealed that would have “seriously damaged the testimony and credibility of the government’s key witness,” according to the finding of Henry Schuelke, who conducted a two-and-a-half-year investigation. . . .

The report found the prosecuting team went unsupervised, withheld documents and never conducted a review for exculpatory evidence. Their “complete, simultaneous and long-term memory failure” concerning a crucial witness with information backing the senator’s claim of innocence was “astonishing,” said Mr. Schuelke. But he concluded that contempt charges against team members — not all were found at fault — were not feasible because they did not receive an explicit reminder from a judge of their obligation to disclose evidence helpful to the defense.

The Justice Department has intensified training of prosecutors on exculpatory policy. They are still allowed to decide what is “material” — a glaring temptation for concealment. The department should set a national standard by joining state and local governments that have adopted open-file requirements for prosecutors to be far more forthcoming about evidence favoring the defense. That is the only fitting postscript to the Stevens debacle.


Categories: External Articles

Murkowski Introduces Exculpatory Evidence Bill in Wake of Stevens Report


by Justin Shubow
Posted March 16, 2012, 2:09 PM

Following the explosive report on the investigation of Senator Ted Stevens, Senator Lisa Murkowski has proposed a bill requring prosecutors to disclose exculpatory evidence to defendants.  According to Main Justice:

Sen. Lisa Murkowski (R-Alaska) proposed legislation today that would require federal prosecutors to disclose evidence favorable to the defense.

The Alaska Republican’s announcement appeared timed to coincide with the release, also today, of a more than 500 page investigative report detailing the “systematic concealment” of evidence by prosecutors in the case against her late friend and mentor, Ted Stevens.

The “Fairness in Disclosure of Evidence Act of 2012″ would require prosecutors in federal criminal cases to disclose the exculpatory evidence in a timely manner or face repercussions, including a dismissal, ordering a new trial or excluding evidence, among other sanctions, according to the bill. At present, the Justice Department leaves the decision of what evidence counts as “exculpatory” to the discretion of prosecutors.

“While the injustices that were done to Senator Stevens may have provided the impetus for the focus on this important issue, this bill is not about seeking vindication for Ted,” Murkowski said in a news release. “It’s about learning the vital lessons from the Justice Department’s failure of his prosecution and making our criminal justice system work the way our Constitution envisioned that it would.”

The bill has bi-partisan support, with Senators Daniel Inouye (D-Hawaii), Daniel Akaka (D-Hawaii), Mark Begich (D-Alaska) and Kay Bailey Hutchison (R-Texas) all co-sponsoring the legislation, according to the release. Begich defeated Stevens in the 2008 election.

Writing in the Wall Street Journal, Nancy Gertner and Barry Scheck called on judges to change evidence rules to prevent mishaps like that suffered by Senator Stevens:

On Thursday, a special prosecutor released his report on the botched prosecution on corruption charges of the late Sen. Ted Stevens. It's worth noting the lessons learned from this investigation. Otherwise, wrongful convictions will continue.

The special prosecutor, Henry Schuelke, found that Justice Department lawyers committed ethics violations by the deliberate and "systematic" withholding of critical evidence pointing to Stevens's innocence, but he declined to go further. The reason: There was no court order expressly directing the government lawyers to turn over the evidence. Criminal charges can only be brought when there is a knowing and intentional violation of an order.

In sharp contrast, on Friday, Feb. 17, the chief judge of the Texas Supreme Court convened a court of inquiry to determine whether the former Williamson County district attorney violated state laws by failing to turn over evidence that could have prevented Michael Morton from spending 25 years in prison after his 1987 conviction for a murder that DNA evidence now proves he didn't commit.

The judge in the Morton case could deal directly with the prosecutor's alleged misconduct while the judge in the Stevens case could not. The Texas prosecutor had been expressly ordered by the trial court to turn over the lead investigator's complete report, an order that made certain all exculpatory evidence would be disclosed. The obligations of the Stevens prosecutors, while based on the Constitution and the disciplinary rules of the profession, were not formally embodied in a court order.

The two cases present a simple solution for dealing with prosecutorial misconduct: Thirty days before trial, or at some reasonable time, the trial judge should convene a conference and issue a specific order directing prosecutors to produce all evidence that "tends to negate the guilt of the accused or mitigate the offense," as required by the American Bar Association's ethics rules. This should include the requirement that prosecutors contact the relevant law-enforcement personnel to make certain all such evidence is disclosed as soon as possible. . . .

This proposal can be implemented tomorrow by every state and federal judge in the nation without the need for legislation. Ultimately, it will benefit prosecutors, defendants and the courts by eliminating any confusion surrounding the disclosure of exculpatory evidence.

Categories: External Articles

2012 FedSoc National Security Symposium - April 5th


by Publius
Posted March 16, 2012, 9:57 AM

On April 5th, the Federalist Society's International & National Security Law Practice Group will be hosting the 2012 National Security Symposium in Washington, D.C.  Please join us for an important update on law and policy issues related to America's national security. The conference will include a major keynote address by former U.S. Secretary of Homeland Security Michael Chertoff. The conference will also discuss cybersecurity and the limits of detention, interrogation, and trying of terrorist suspects.

Details below.

Start : Thursday, April 5, 2012 10:00 AM

End   : Thursday, April 5, 2012 3:00 PM

Location: Jones Day LLP, 51 Louisiana Ave. NW, Washington, DC



Welcome and Introduction
10:00 a.m.

  • Vincent J. Vitkowsky, Adjunct Fellow, Center for Law and Counterterrorism

Panel One: Detention, Interrogation and Trial of Terrorist Suspects – 10 Years Later
10:10 a.m. - 11:45 a.m.

The legal ambiguities associated with the classification, interrogation and adjudication of al Qaeda members alleged to have committed war crimes continue to hamper the Obama administration’s national security policy. This confusion and the inconsistent application of laws to govern the conflict have exacerbated criticism of the U. S. approach to the war on al Qaeda. This panel will analyze, from myriad perspectives, U. S. policy and practice on these issues as we enter the second decade of the armed conflict.

  • Prof. Nathan A. Sales, George Mason University School of Law
  • Charles D. “Cully” Stimson, former Deputy Assistant U.S. Secretary of Defense (Detainee Affairs) and Senior Legal Fellow, Heritage Foundation
  • Prof. Stephen I. Vladeck, American University Washington College of Law
  • Benjamin Wittes, Senior Fellow, Brookings Institution
  • Moderator: Prof. Glenn M. Sulmasy, U.S. Coast Guard Academy

Luncheon Address: National Security After U.S. v. Jones
12:00 p.m.

  • Hon. Michael Chertoff, Co-founder and Managing Principal, The Chertoff Group and former Secretary, Department of Homeland Security

Panel Two: Cybersecurity and Critical Infrastructure
1:30 p.m. - 3:00 p.m.

Cybersecurity must address complicated and interconnected threats of cyberattacks on critical infrastructure sectors, cybertheft of personal data, cyberespionage, cyberwarfare and cyberterrorism. It raises challenging practical, legal and policy issues, including what proposals would be effective, the scope of regulatory authority, the nature of information sharing and liability protections, and the preservation of internet freedom and privacy.

  • Hon. Stewart A. Baker, Partner, Steptoe & Johnson LLP and former Assistant Secretary for Policy, Department of Homeland Security
  • Matthew J. Eggers, Senior Director, National Security and Emergency Preparedness, U.S. Chamber of Commerce
  • Sharon Bradford Franklin, Senior Counsel, The Constitution Project
  • Jamil N. Jaffer, Senior Counsel, House Permanent Select Committee on Intelligence
  • Moderator: Vincent J. Vitkowsky, Adjunct Fellow, Center for Law and Counterterrorism

Registration details:

There is no fee but space is limited and registration is required.

CLE credits pending.


Report: “Systematic Concealment” of Key Evidence in Sen. Ted Stevens Investigation


by Justin Shubow
Posted March 16, 2012, 6:58 AM

The long-anticipated investigative report on the prosecution of the late Senator Ted Stevens has just been released.  The Washington Post reports:

The federal investigation of former U.S. Sen. Ted Stevens was “permeated by the systematic concealment” of evidence that would have aided the Alaska politician’s defense at trial and would have “seriously damaged the testimony and credibility of the government’s key witness,” a special prosecutor concluded.

The 514-page report was a response to an investigation ordered by U.S. District Judge Emmet G. Sullivan, who threw out Stevens’ April 2009 guilty verdict in a financial disclosure case after the Justice Department revealed that prosecutors kept key information from defense attorneys.

Three years later, “special prosecutor” Henry L. Schuelke made the report public over objections from the prosecutors involved in the case.

Prosecutors are generally required to turn over helpful evidence to defense lawyers.

Stevens, an Alaska Republican who died in a small-plane crash in 2010, lost his reelection bid shortly after being convicted of seven counts of making false statements on financial disclosure statements to hide about $250,000 in gifts and free renovations to his Alaska house. . . .

In the end, however, Schuelke recommended against charging the federal prosecutors — Brenda Morris, William Welch, Edward Sullivan, Joseph Bottini and James Goeke, as well as Nicholas Marsh, who committed suicide last year — with a crime. He wrote that prosecuting the Justice Department lawyers would be difficult because Sullivan never issued a “clear, specific and unequivocal order” to disclose evidence that would have helped the defense.

For a selection of the Federalist Society's materials on the problem of overcriminalization, click here.

Categories: External Articles

New SCOTUScast: Magner v. Gallagher


by SCOTUScaster
Posted March 15, 2012, 4:48 PM

On February 10th, the Supreme Court case Magner v. Gallagher was dismissed by agreement of the parties involved.  This case presented two questions: (1) whether rental property owners in St. Paul, Minnesota could, under the Fair Housing Act, challenge the city’s “aggressive enforcement” of its housing code on the theory that such enforcement constituted “disparate impact” race discrimination; and (2) if so, how those disparate impact claims should be analyzed.

We have Roger Clegg, President and General Counsel of the Center for Equal Opportunity, to discuss the case.

Click here to view this article on the source site »

Categories: SCOTUScasts

A Conversation with Justice Thomas at Wake Forest Law School


by Justin Shubow
Posted March 15, 2012, 1:40 PM

On March 6th, Justice Clarence Thomas visited Wake Forest School of Law, where he sat down for an interview about his life and approach to the law.  The video lasts one hour.

Senate Deal Allows Confirmation Votes for 14 Judicial Nominees


by Justin Shubow
Posted March 15, 2012, 9:30 AM

BLT: The Blog of Legal Times reports that a Senate deal will allow confirmation votes for 14 of President Obama's judicial nominees:

After months of backlog and partisan recrimination, Senate leaders reached an agreement to move forward with judicial nominees this afternoon that assures 12 federal district court judge picks and two circuit court selections will get confirmation votes before the summer.

Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Kent.) struck the deal amid a threat from some Republicans to filibuster judges as a response to President Barack Obama’s controversial recess appointments to consumer and labor agencies two months ago.

Categories: External Articles




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