FedSoc Blog

Brian Kalt is guest blogging at the Volokh Conspiracy regarding his new book Constitutional Cliffhangers.   In his first post, the Michigan State University professor defines "constitutional cliffhangers" as “scenarios in which the fate of the president or presidency is in doubt as politicians, courts, and the people argue over the proper interpretation of the Constitution.”  Why should we care about scenarios that many might think are bizarre and unlikely?  Kalt explains:

The short answer is that crazy stuff like this happens quite often. The scenarios in my book were chosen because they haven’t happened yet, but some of them have come close. More to the point, other examples abound in American history: The Jefferson-Burr tie in the Election of 1800 is probably the first; the Harrison-Tyler “acting president” question from 1841 is probably the most significant; and the Paula Jones case is probably the most recent. The Constitution has too many wrinkles and slick spots in it for us to avoid tripping or slipping on them once in a while.

It’s worthwhile to try to identify problems before they happen, and to discuss and possibly fix them. Indeed, some of them are too obvious to ignore, yet we still manage to do so until it’s too late.

On January 10th, the Supreme Court announced its decision in CompuCredit Corp. v. Greenwood.  The case regarded the Credit Repair Organizations Act (CROA), which requires credit repair organizations to disclose to consumers that they have a right to sue credit repair organizations that violate the Act.  At issue was whether a credit repair company being sued by former customers under CROA could force those customers to arbitrate their claims based on an arbitration provision contained in the customers’ credit card applications.

In an opinion written by Justice Scalia, the Court held 8-1 that CROA does not address the arbitrability of claims made under it, and that the Federal Arbitration Act therefore requires the arbitration agreement to be enforced according to its terms.  Justice Sotomayor filed a concurring opinion, joined by Justice Kagan.  Justice Ginsburg filed a dissenting opinion. 

We have Christopher Drahozal, a professor at the University of Kansas School of Law, to discuss the case.

Click here to view this article on the source site »

The Federalist Society has posted videos of nearly the entire 14th annual Faculty Conference, which was held January 5-6, 2012, in Washington, D.C.

Below please find the schedule with links to the videos.

Thursday, January 5, 2012

Panel 1: The Sovereign Shareholder? Government Ownership and Corporate Law Post-Bailout  

• Prof. Lynn Stout, UCLA School of Law
• Prof. J.W. Verret, George Mason University School of Law
• Prof. David Zaring, The Wharton School, University of Pennsylvania
• Moderator: Dean Donald Weidner, Florida State University College of Law
• Introduction: Hon. Lee Liberman Otis, Senior Vice President & Faculty Division Director, The Federalist Society

Friday, January 6, 2012

Panel 2: Public Sector Unions  

• Prof. Samuel Estreicher, New York University School of Law
• Prof. John McGinnis, Northwestern University School of Law
• Prof. Joseph Slater, University of Toledo College of Law
• Moderator: Prof. James Lindgren, Northwestern University School of Law

Young Legal Scholars Paper Presentations  

• Mr. William Baude, Stanford Constitutional Law Center, "Beyond DOMA"
• Prof. Dan Markel, Florida State University College of Law, "Retributive Justice and the Demands of Democratic Citizenship"
• Prof. Andrew Schwartz, University of Colorado Law School, "The Perpetual Corporation"
• Prof. Houman Shadab, New York Law School, "Credit Risk Transfer Governance: The Good, the Bad, and the Savvy"
• Commenter: Prof. Eugene Volokh, UCLA School of Law
• Commenter: Prof. Todd Henderson, University of Chicago Law School
• Moderator: Prof. Nicholas Quinn Rosenkranz, Georgetown University Law Center

Luncheon Debate: The Alien Tort Statute, International Law, and the Judiciary  
Co-sponsored by the American Society of International Law

• Prof. Eugene Kontorovich, Northwestern University School of Law
• Prof. Stephen Vladeck, American University Washington College of Law
• Moderator: Ms. Elizabeth Andersen, Executive Director & Executive Vice President, American Society of International Law

Panel 3: Judicial Ethics  

• Prof. Charles Geyh, Indiana University Maurer School of Law
• Prof. Stephen Gillers, New York University School of Law
• Hon. A. Raymond Randolph, U.S. Court of Appeals, District of Columbia Circuit
• Prof. Ronald Rotunda, Chapman University School of Law
• Moderator: Hon. Deanell Tacha, Pepperdine University School of Law

The Supreme Court today delivered its opinion in United States v. Jones, a case regarding whether police officers’ warrantless installation and use of a GPS tracking device on a suspect’s vehicle violated the Fourth Amendment.  (Find Orin Kerr's earlier SCOTUScast on the case here.)  The court ruled unanimously that the use of the GPS tracking was in fact an unconstitutional search.

Justice Antonin Scalia delivered the opinion, which was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Sonia Sotomayor (who also filed a concurring opinion), and Clarence Thomas:

It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a "search" within the meaning of the Fourth Amendment when it was adopted.

Justice Samuel Alito filed a concurring opinion, joined by Justices Stephen Breyer, Ruth Bader Ginsburg, and Elena Kagan. Alito wrote:

[The majority's] holding, in my judgment, is unwise. It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial.

I would analyze the question presented in this case by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.

Fox News reports:

The chief of the Criminal Division of the U.S. Attorney’s Office in Arizona is refusing to testify before Congress regarding Operation Fast and Furious, the federal gun-running scandal that sent U.S. weapons to Mexico.

Patrick J. Cunningham informed the House Oversight Committee late Thursday through his attorney that he will use the Fifth Amendment protection.

Cunningham was ordered Wednesday to appear before Chairman Darrell Issa and the House Oversight Committee regarding his role in the operation that sent more than 2,000 guns to the Sinaloa Cartel. Guns from the failed operation were found at the murder scene of Border Agent Brian Terry.

The letter from Cunningham’s Washington DC attorney stunned congressional staff. Last week, Cunningham, the second highest ranking U.S. Attorney in Arizona, was scheduled to appear before Issa‘s committee voluntarily. Then, he declined and Issa issued a subpoena. 

Cunningham is represented by Tobin Romero of Williams and Connolly who is a specialist in white collar crime. In the letter, he suggests witnesses from the Department of Justice in Washington, who have spoken in support of Attorney General Eric Holder, are wrong or lying.

“Department of Justice officials have reported to the Committee that my client relayed inaccurate information to the Department upon which it relied in preparing its initial response to Congress. If, as you claim, Department officials have blamed my client, they have blamed him unfairly,” the letter to Issa says.

Romero claims Cunningham did nothing wrong and acted in good faith, but the Department of Justice in Washington is making him the fall guy, claiming he failed to accurately provide the Oversight Committee with information on the execution of Fast and Furious.

"To avoid needless preparation by the Committee and its staff for a deposition next week, I am writing to advise you that my client is going to assert his constitutional privilege not to be compelled to be a witness against himself." Romero told Issa.

This schism is the first big break in what has been a unified front in the government’s defense of itself in the gun-running scandal. Cunningham claims he is a victim of a conflict between two branches of government and will not be compelled to be a witnesses against himself, and make a statement that could be later used by a grand jury or special prosecutor to indict him on criminal charges.

CNN reports on an important Supreme Court decision regarding legislative redistricting:

The Supreme Court has tossed out the Texas redistricting map for congressional and legislative seats drawn up a federal court, giving a partial victory to GOP lawmakers.

In an unsigned opinion issued just 11 days after holding oral arguments, the justices said a revised map that differed greatly from the one created by the legislature used ambiguous standards.

"To the extent the [federal] District Court exceeded its mission to draw interim maps that do not violate the Constitution or the Voting Rights Act, and substituted its own concept of 'the collective public good' for the Texas Legislature's determination of which policies serve 'the interests of the citizens of Texas,' the [district] court erred," said the Supreme Court ruling Friday.

At issue are competing maps for the Texas state legislative and congressional districts – created first by Republican lawmakers that favored their political base, and later by a federal judicial panel to give minorities greater voting power.

The court-drawn map was imposed after Democrats and minority groups in Texas challenged the original plan approved by the GOP-led state legislature.

The political stakes are huge: Texas gains four new congressional seats based on the newly completed census, and this ruling could help determine whether Democrats can wrest control of the House of Representatives from the Republicans.

The legal stakes are just as important – creating standards courts must use when evaluating voting boundaries. This is the latest election-related dispute for the justices this year. Continuing, separate challenges to campaign spending laws and state voter identification laws will soon be presented to the court.

On Saturday, January 28, 2012, FedSoc will host its sixth annual Western Conference at the Ronald Reagan Presidential Library in Simi Valley, California.  The theme is "Challenges Facing California and the Western States."

In addition to a luncheon exchange between Ninth Circuit judges Alex Kozinski and Stephen Reinhardt, the conference will include the following panels:

California in Crisis: Are People and Jobs Leaving for Better Pastures?
10:15 a.m. - 12:00 Noon
Much has been written lately about companies’ unwillingness to invest or create new jobs in California.  2010 was the first census in which California did not add a member of Congress.  Other states, including Texas, are seeing large influxes of new jobs and people.  Some have suggested that California law (as passed by the legislature and as made by the courts) contributes to a negative business climate that discourages investment and job creation.  This panel will look at California laws involving employment issues, tort liability, and environmental regulation and compare California’s approach to those of other states, including Texas to determine whether the law has become an impediment to job creation in California.

Panelists:

• William J. Emanuel, Littler Mendelson P.C.
• Mr. Jed Kolko, Chief Economist and Head of Analytics, Trulia
• Mr. H. Scott Leviant, Spiro Moss LLP
• David A. Schwarz, Irell & Manella LLP and Member, Little Hoover Commission
• Ms. Kate Comerford Todd, Chief Counsel, Appellate Litigation, National Chamber Litigation Center
• Hon. Carlos T. Bea, U.S. Court of Appeals, Ninth Circuit (Moderator)

Federalism and State Immigration Policy
2:15 p.m. - 4:00 p.m.
Arizona v. United States raises several cutting edge questions about federal preemption of state laws. These questions derive from Arizona’s “mirror image theory” of the case. That is, Arizona argues that its statutes are a mirror image of federal statutes, and therefore that no preemption problem exists. In arguing against that theory, the federal government has voiced what has been unflatteringly called “preemption by executive whim.” That is, that preemption can be created by federal executive branch enforcement (or, non-enforcement) priorities that essentially ignore enforcement of the statutes being mirrored. What do those competing claims mean in preemption analysis where, traditionally, courts have looked to the law as written/established, rather than as enforced?

Another big question here is whether a state may have specific policies where either (1) the federal government does not, or (2) the federal government is perceived to have failed in its policies. Arizona has expressly adopted a policy of “attrition through enforcement” in regard to illegal aliens. The federal government, on the other hand, has not ever adopted such a policy. As Ilya Shapiro put it, the national immigration system “is a remnant of various half-baked ‘reforms’ going back decades, it’s a schizophrenic set of laws that don’t advance any particular goal or mission.” Does a “policyless” federal system conflict with a state system that has a policy? Does it matter if that policy is “attrition through enforcement” or “sanctuary cities”? Moreover, does the federal government’s “failure” to have a workable or actual policy free a state to derive its own policy, at least where that vacuum of federal power is seen as having specific negative effects on the state?

Panelists:

• Prof. Gabriel “Jack” Chin, UC Davis School of Law
• Prof. John Eastman, Chapman University School of Law
• Joe Sciarrotta, Counsel to Governor Jan Brewer, Arizona
• Prof. Margaret Stock, Counsel, Lane Powell LLC
• Hon. Edwin Meese, The Heritage Foundation and former U.S. Attorney General (Moderator)

For more information on the conference and to register, click here.

Ken Kersch, a political science professor at Boston College, recently published a law journal article that might be of interest.  It's titled "Beyond Originalism: Conservative Declarationism and Constitutional Redemption."  According to the introduction:

Almost 150 years after the ratification of the Thirteenth Amendment, the redemption of the nation from chattel slavery has become important--and for many conservatives, central--to the understanding of American politics. Slavery itself may be a thing of the past, but the purported political and constitutional lessons of its initial acceptance and subsequent eradication--once a preoccupation primarily of the liberal/left--are very much on the mind of the modern American right. In a marked departure from the old, more familiar conservative narrative, many of the modern movement's most influential constitutional theorists recount the nation's experience with slavery through a constitutional vision I will call (as have others) "Declarationism." As that term is used in this Article, Declarationism is the view that the Constitution can only be understood and interpreted in light of the principles enunciated in the opening words of the Declaration of Independence, which are held to be the Constitution's beating heart and unshakable foundation.

This Article, argues that contemporary conservative Declarationism offers a dramatic and morally compelling story about the long trajectory of American constitutional development, and serves: (1) as an ideological means of morally rehabilitating and redeeming southern conservatism in the wake of its longtime, but now morally discredited, defense of legal segregation; and (2) as an ideological means of unifying the diverse strands of the contemporary Religious Right. Both, of course, are crucial to the mission of the modern Republican Party.

On January 11th, the Supreme Court heard oral argument in Coleman v. Maryland Court of Appeals.  The question before the Court is whether Congress, in passing the “self-care” provision of the Family and Medical Leave Act, constitutionally abrogated the Eleventh Amendment sovereign immunity of the states.  Under the Act's self-care provision, a state worker may sue if the state interferes with the worker’s statutory right to a certain amount of leave for a personal debilitating health condition.

To discuss the case, we have Elizabeth Foley, professor at the Florida International University School of Law.

Click here to view this article on the source site »

Numerous websites--including Wikipedia, Google, Reddit, Craigslist--went dark today to protest the proposed Stop Online Piracy Act (SOPA) and PROTECT IP Act (PIPA).  The Daily Caller reported on one prominent defender of the legislation:

Former Connecticut Democratic Sen. Chris Dodd, currently chairman and CEO of the Motion Picture Association of America, condemned the SOPA “Blackout Day” as a “gimmick” and an “abuse of power” by the Web companies participating in the protest against pending anti-piracy legislation. . . .

While supporters of the legislation — including the MPAA, the Recording Industry Association of America and the U.S. Chamber of Commerce — have argued that legislation is needed to tackle the problem of foreign “rogue sites” that peddle counterfeit products to Americans, opponents of the legislation argue that it would jeopardize free speech.

Dodd . . . issued a statement on the eve of Wednesday’s “blackout,” in which he said that the blackout day was a “dangerous” “gimmick” “designed to punish elected and administration officials who are working diligently to protect American jobs from foreign criminals.”

“It is an irresponsible response and a disservice to people who rely on them for information and use their services,” said Dodd.

"It is also an abuse of power given the freedoms these companies enjoy in the marketplace today,” said Dodd, “It’s a dangerous and troubling development when the platforms that serve as gateways to information intentionally skew the facts to incite their users in order to further their corporate interests.

Writing for Forbes, Josh Barro of the Manhattan Institute attempted to place the debate over SOPA in historic context by arguing that the MPAA's fear of the internet is reminiscent of the organization's earlier fear of VCRs:

Thirty years before SOPA, the MPAA was in Washington, demanding legislative protection from a new and dangerous technology: the VCR. Here’s then-MPAA head Jack Valenti, testifying before a House Judiciary Subcommittee in 1982:

 I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone…

The Mediastat’s analyst says that 67 percent of the VCR owners own no prerecorded cassettes and 72 percent plan to buy one in the coming year and 48 percent have never rented a prerecorded cassette. The major source of programing material is home recording, which thus preempts prerecorded tapes and their revenue…

The loser will be your public because they don’t have these expensive machines. And that is what I am saying, sir. The public is the loser when creative property is taken and here is the reason why. The investment of hundreds of millions of dollars each year to produce quality programs to theaters and television will surely decline.

Of course, home video (and later DVD) went on to become a hugely profitable delivery channel for movie studios. Far from decimating the industry, it grew profits, especially for studios like Disney with valuable back catalogs. It just goes to show, disruptive technologies can have different effects than you expect.

On January 11, 2012, the Supreme Court announced its decision in Pacific Operators Offshore LLP v. Valladolid.  The question in the case was whether an employee who spent nearly all his time working on an offshore platform, but was killed in an accident at an onshore facility, suffered his injuries “as the result of” operations conducted on the outer continental shelf, thereby giving his widow a claim for benefits under the Longshore and Harbor Workers’ Compensation Act, by way of the Outer Continental Shelf Lands Act (OCSLA).  An administrative law judge and review board denied benefits because the accident occurred onshore, but the U.S. Court of Appeals for the Ninth Circuit reversed, concluding that a benefits claimant need only establish a “substantial nexus” between the injury and extractive operations on the outer continental shelf.

In an opinion delivered by Justice Thomas and joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, the Court affirmed the Ninth Circuit and remanded the case for further proceedings.  The OCSLA, the Court held, extends coverage to an employee who can establish a substantial nexus between his injury and his employer’s extractive operations on the Outer Continental Shelf.  Justice Scalia filed an opinion concurring in part and concurring in the judgment, which Justice Alito joined.

To discuss the case, we have Richard Epstein, professor at New York University School of Law and professor emeritus at the University of Chicago Law School.

Click here to view this article on the source site »

SCOTUSblog reports on the first lawsuit opposing President Obama's recess appointments:

A group of business organizations and individual firms on Friday began the first challenge to President Obama’s new government appointments while the Senate is out of town, using a case involving the National Labor Relations Board to test the issue.  In a motion filed in U.S. District Court in Washington, along with a legal memorandum, the challengers argued that the NLRB has no power to go ahead with a pending rule on workers’ rights because the three new appointees were not legally named, so the Board has no operating quorum.

Professor John McGinnis and Kirkland & Ellis associate Russell D. Mangas team up in the Wall Street Journal to suggest a major overhaul in how lawyers are educated and licensed:

The high cost of graduate legal education limits the supply of lawyers and leads to higher legal fees. And higher fees place legal services out of the reach of middle-income families at a time when increasing complexity demands more access to these services. In short, the current system leaves citizens underserved and young lawyers indebted. . . .

Here is a straightforward solution: States should permit undergraduate colleges to offer majors in law that will entitle graduates to take the bar exam. If they want to add a practical requirement, states could also ask graduates to serve one-year apprenticeships before becoming eligible for admission to the bar.

An undergraduate legal degree could be readily designed. A student could devote half of his course work to the major, which would allow him to approximate two years of legal study. There is substantial agreement in the profession that two years are enough to understand the essentials of the law—both the basics of our ancient common law and the innovations of our modern world. A one-year apprenticeship after graduation would allow young lawyers to replace the superfluous third year of law school with practical training.

This option would reduce the law school tuition to zero. And the three years of students going without income would be replaced by a year of paid apprenticeship and two years earning a living as a lawyer.

The idea of learning law as an undergraduate discipline is hardly untested. Great Britain, for instance, educates lawyers in college, not graduate school. These college-educated lawyers appear to provide legal services on par with those of their American colleagues.

The Federalist Society is now accepting applications for the 2012-2013 Olin-Searle-Smith Fellowships in Law.

The Program

The Olin-Searle-Smith Fellows in Law program offers top young legal thinkers the opportunity to spend a year working full time on writing and developing their scholarship with the goal of entering the legal academy. Up to three fellowships will be offered for the 2012-2013 academic year.

A distinguished group of academics will select the Fellows. Criteria include:

• Dedication to teaching and scholarship
• A J.D. and extremely strong academic qualifications (such as significant clerkship or law review experience)
• Commitment to the rule of law and intellectual diversity in legal academia
• The promise of a distinguished career as a legal scholar and teacher

Benefits

Stipends will include $50,000 plus benefits. While details will be worked out with the specific host school for the Fellow, in general the Fellow will be provided with an office and will be included in the life of the school. Fellows are not expected to hold other employment during the term of their fellowships.

Applications

All who believe they fit the criteria are encouraged to apply. Applicants should submit the following:

• A resume and law school transcript
• Academic writing sample(s) with an approximately 50-page limit on the total number of pages submitted (i.e., two 25-page pieces are fine, two 50-page pieces are not)
• A brief discussion of their areas of intellectual interest (approximately 2 pages)
• A statement of their commitment to teaching law
• At least two and generally no more than three letters of support. These should come from people who can speak to your academic potential and should generally include at least two letters from law professors. If you are doing interdisciplinary work a letter from someone who can speak to your work in that area is also helpful. You may also include additional references with phone numbers.

Applications must be received no later than March 15, 2012.
Applicants will be notified in early to mid-May 2012.

Please submit applications to:

Olin-Searle-Smith Fellows in Law Program
ATTN: Tyler Lowe
c/o The Federalist Society
1015 18th Street NW, Suite 425
Washington, DC 20036
(202) 822-8138

No sheriffs were shot, but a photo of reggae star Bob Marley made an appearance in a recent decision written by Judge Richard Posner.  In a ruling regarding a prison inmate's pro se suit to be permitted to wear dreadlocks on religious grounds despite his not being a Rastafarian, the judge included the photo to demonstrate that "Dreadlocks can attain a formidable length and density," and thus can be a hiding place for weapons.  However, Posner ruled that since the prison permits Rastafarians to wear dreadlocks for religious reasons, if the prisoner genuinely believes his religion similarly obligates such hair, he ought to be permitted to wear it as well.