FedSoc Blog

In the Wall Street Journal, Peter Berkowitz bemoans that few leading universities require students to read the Federalist Papers:

It would be difficult to overstate the significance of The Federalist for understanding the principles of American government and the challenges that liberal democracies confront early in the second decade of the 21st century. Yet despite the lip service they pay to liberal education, our leading universities can't be bothered to require students to study The Federalist—or, worse, they oppose such requirements on moral, political or pedagogical grounds. Small wonder it took so long for progressives to realize that arguments about the constitutionality of ObamaCare are indeed serious. . . .

Most astonishing and most revealing is the neglect of The Federalist by graduate schools and law schools. The political science departments at Harvard, Yale, Princeton, Stanford and Berkeley—which set the tone for higher education throughout the nation and train many of the next generation's professors—do not require candidates for the Ph.D. to study The Federalist. And these universities' law schools (Princeton has no law school), which produce many of the nation's leading members of the bar and bench, do not require their students to read, let alone master, The Federalist's major ideas and main lines of thought.

On April 2, the Supreme Court announced its decision in Florence v. Board of Chosen Freeholders. The question in this case was whether the Fourth Amendment permits the government to conduct a visual strip search of any person who is admitted to jail, even when there is no reasonable basis for suspecting that the person has hidden weapons or contraband.

In an opinion delivered by Justice Kennedy, the Court held by a vote of 5-4 that the government may conduct a visual strip search of any person who is to be admitted to the general population of a jail.  The Chief Justice, as well as Justices Scalia and Alito, joined Justice Kennedy’s opinion in full.  Justice Thomas joined that opinion as to all except Part IV.  The Chief Justice and Justice Alito also wrote separate concurring opinions.  Justice Breyer filed a dissenting opinion, which was joined by Justices Ginsburg, Sotomayor and Kagan.

To discuss the case, we have Sarah Hart, a prosecutor in Philadelphia.

Click here to view this article on the source site »

According to the Washington Times:

The Social Security Administration last month told its disability-claims judges they are no longer to seek out information from websites when deciding cases — taking away a tool some of those judges say would help in uncovering fraud.

Agency officials said reviewers can’t trust information posted online, and also said the mere act of typing in queries could compromise protected private information, so they shouldn’t try to access anything.

Social Security’s ban covers all Internet sites, including social media such as Facebook.

But Sen. Tom Coburn, Oklahoma Republican and a top taxpayer watchdog, said avoiding the Internet means giving up a valuable anti-fraud weapon — one that he said even federal courts have relied upon in some disability cases.

“If an individual claims to be disabled, and then publicly posts a picture participating in a sport or physical activity on a social media website, such information should be used by [adjudicators] to determine if the claimant was truly disabled,” Mr. Coburn wrote in a letter last week to Social Security Commissioner Michael J. Astrue.

The dispute raises Internet-age questions about the information people make available about themselves online, and how proactive government agencies should be in seeking out that information when it comes to granting taxpayer-funded benefits.

Social Security officials said they don’t object to using information gleaned from the Internet, but they don’t want the front-line deciders going out looking for it. They said that’s a job for fraud investigators to follow up on later in the process.

Yesterday the Third Circuit issued its opinion on remand in U.S. v. Bond, a chemical weapons treaty case that led Justice Kennedy to describe federalism as a protection for individual liberty.  At the Volokh Conspiracy, Jonathan H. Adler provides a good summary:

According to the New York Times:

Starting next year, New York will become the first state to require lawyers to perform unpaid work before being licensed to practice, the state’s chief judge announced on Tuesday, describing the rule as a way to help the growing number of people who cannot afford legal services.

The approximately 10,000 lawyers who apply to the New York State Bar each year will have to demonstrate that they have performed 50 hours of pro bono work to be admitted, Chief Judge Jonathan Lippman said. He said the move was intended to provide about a half-million hours of badly needed legal services to those with urgent problems, like foreclosure and domestic violence.

The need has exploded in recent years as the economic crisis delivered what advocates for the poor call a triple whammy: more people are struggling financially; more people need legal services to cope with foreclosures, evictions and credit and employment problems that could push them into long-term poverty; and state and federal financing for legal services has plunged.

Time magazine reports:

In August 2011, when Diana Wang began her seventh unpaid internship, this time at Harper’s Bazaar, the legendary high-end fashion magazine, she figured that her previous six internships – at a modeling agency, a PR firm, a jewelry designer, a magazine, an art gallery and a state governor’s office – had prepared her for the demands of New York’s fashion world.

“I was so determined to make this one really worth my while,” says the 28-year-old Wang, who moved from Columbus, Ohio, to New York, where she was living with her boyfriend (also working as an unpaid intern at one point) and living off of her savings. “I knew I couldn’t do anymore internships after this.”

As it turned out, Wang’s internship was just like many of the thousands of others: unrewarding in terms of both pay and marketable experience — not to mention the lack of a job offer. In fact, the only difference between her internship and most others was what happened about a month after it ended. Wang sued.

On Feb. 1, the law firm Outten & Golden filed a class-action lawsuit against the Hearst Corporation, which owns Harper’s Bazaar, on behalf of Wang and any other unpaid and underpaid intern who worked at the company over the past six years. The lawsuit alleges that, among other things, Hearst violated federal and state labor laws by having Wang work as many as 55 hours a week without compensation.

At Concurring Opinions, Sarah Waldeck comments on a law faculty's recent decision to weigh in on a matter facing Minnesota voters:

This fall Minnesota voters will decide whether to amend their state constitution by adding a ban on same-sex marriage.  The William Mitchell faculty recently adopted a resolution against the amendment and then released the resolution along with details of the faculty vote (24 – 7) to the press.  The resolution first notes that the proposed amendment conflicts with William Mitchell’s anti-discrimination policy and “could substantially impair William Mitchell’s ability to recruit and retain the best qualified students, staff and faculty.”  The resolution then goes on to list legal and moral objections to the amendment and states, “As a Faculty of Law, we believe that limitations on civil rights should not be enshrined in our state constitution.”  Finally, the resolution encourages Minnesota’s three other law schools to adopt similar resolutions of their own.

William Mitchell’s action has left me thinking about several broad questions.  First, when—if ever—do law faculties have a responsibility to take public positions on matters facing the electorate?  Of course individual faculty members routinely comment on such issues, either in their own writings or when responding to press inquiries. But when an issue involves fundamental rights or constitutional amendments, are law professors obligated to weigh in “as a faculty?”

Commenting on the blog post, Will Baude quotes a 1967 report by Harry Kalven of the University of Chicago law school on the same topic:

[A] good university, like Socrates, will be upsetting. The instrument of dissent and criticism is the individual faculty member of the individual student. The university is the home and sponsor of critics; is not itself the critic. ….

[The university] cannot take collective action on the issues of the day without endangering the conditions for its existence and effectiveness. There is no mechanism by which it can reach a collective position without inhibiting that full freedom of dissent on which it thrives. It cannot insist that all of its members favor a given view of social policy; if it takes collective action, therefore, it does so at the price of censuring any minority who do not agree with the view adopted. In brief, it is a community which cannot resort to majority vote to reach positions on public issues.

CBS News reports:

Republicans on the House Oversight Committee were to take the first formal step Thursday toward contempt proceedings against Attorney General Eric Holder over the Fast and Furious "gunwalking" operation, CBS News has learned.

The case for a citation declaring Holder in contempt will be laid out in a briefing paper and 48-page draft citation distributed to Democrats and Republicans on the committee. CBS News has obtained copies of both documents. In them, Republican members use strong language to accuse Holder of obstructing the committee's investigation, which is now in its second year.

The documents allege that the Justice Department has issued, "false denials, given answers intended to misdirect investigators, sought to intimidate witnesses, unlawfully withheld subpoenaed documents, and waited to be confronted with indisputable evidence before acknowledging uncomfortable facts."

"The Justice Department's demonstrable contempt for the congressional investigation has inflicted harm on the people of two nations seeking the truth - and very pointedly on the family of fallen Border Patrol Agent Brian Terry and ATF whistleblowers who now face retaliation in the wake of their own heroic efforts to expose wrongdoing," says the brief to be distributed Thursday.

For its part, the Justice Department says it has complied with the congressional investigations, led by Rep. Darrell Issa (R-CA) and Sen. Charles Grassley (R-Iowa).

On March 26, the Supreme Court announced its decision in Zivotofsky v. Clinton (also known as M.B.Z. v. Clinton). This case presented two questions concerning U.S. citizens born in Jerusalem: (1) whether courts can enforce a federal statute directing the Secretary of State to, if requested, record the birthplace of such citizens on passports and consular reports as “Israel”; and (2) whether that statute improperly interferes with the President’s constitutional authority to recognize foreign sovereigns.  The lower appellate court dismissed the case on the grounds that these issues presented a nonjusticeable “political question.”

By a vote of 8-1 the Supreme Court vacated the appellate court’s decision and remanded the case for further proceedings.  In an opinion joined by Justices Scalia, Kennedy, Thomas, Ginsburg, and Kagan, Chief Justice Roberts indicated that federal courts “are fully capable of determining whether [the] statute may be given effect, or instead must be struck down in light of authority conferred on the Executive by the Constitution.”  Justice Sotomayor filed an opinion concurring in part and concurring in the judgment, in which Justice Breyer joined as to Part I.  Justice Alito filed an opinion concurring in the judgment, and Justice Breyer filed a dissenting opinion.

We have John Elwood, a partner at Vinson & Elkins’s appellate group, to discuss the case.

Click here to view this article on the source site »

The AP reports on the Ninth Circuit's decision:

An appeals court on Wednesday tossed out a convicted terrorist's lawsuit accusing a high-ranking Bush administration lawyer who wrote the so-called "torture memos" of authorizing illegally harsh treatment.

Former Deputy Assistant Attorney General John Yoo is protected from such lawsuits because the law defining torture and the treatment of enemy combatants was unsettled in the two years after the Sept. 11 terror attacks, when the memos were written, the 9th U.S. Circuit Court of Appeals said.

The memos have been embroiled in national security politics for years after laying out a broad interpretation of executive power.

The unanimous ruling of the three-judge panel reversed a lower court decision allowing Jose Padilla's lawsuit to go forward. Padilla is serving a 17-year sentence on terror charges.

Padilla was arrested in May 2002 at Chicago's O'Hare International Airport and charged with conspiring with al-Qaida to detonate a radioactive "dirty bomb" within the United States. President Bush deemed him an enemy combatant and he was held in military custody for nearly four years before being charged in federal court.

Padilla claims that during his military custody he was subjected to a wide-range of harsh interrogation techniques that amounted to illegal torture. Padilla said he underwent prolonged isolation, light deprivation, extreme variations in temperature, loud noises, administration of psychotropic drugs and other techniques that he alleged were authorized by Yoo.

"There was at that time considerable debate, both in and out of government, over the definition of torture as applied to specific interrogation techniques," Judge Raymond Fisher wrote for the unanimous three-judge appeals panel. "In light of that debate...we cannot say that any reasonable official in 2001-03 would have known that the specific interrogation techniques allegedly employed against Padilla, however appalling, necessarily amounted to torture."

The appeals panel also said the trial court erred when it concluded that Padilla and other suspected terrorists held by the military enjoyed the same rights as ordinary prison inmates. Fisher was joined by Judges N. Randy Smith and Rebecca R. Pallmeyer. Fisher and Pallmeyer were appointed by President Bill Clinton. President George W. Bush appointed Smith.

The latest edition of Engage, the Federalist Society's practice journal, contains an article by Michael James Barton and Brandon Simmons titled "Does the Takings Clause Have an Expiration Date?"  Here is the overview:

In the last Term, the United States Supreme Court declined to review two property rights cases: Guggenheim v. City of Goleta, from the United States Court of Appeals for the Ninth Circuit, and CRV Enterprises v. United States, from the United States Court of Appeals for the Federal Circuit. Some observers expected the Court to grant the petitions for certiorari for these cases because both appellate decisions appeared to depart from the Court’s opinion in Palazzolo v. Rhode Island, which held that a claim brought under the Takings Clause of the Fifth Amendment could not be dismissed for lack of standing merely because the property owner had purchased the property after it became subject to the regulation effecting the alleged taking. Observers may have had additional hope that the Court would grant certiorari in Guggenheim and CRV Enterprises because of the circuits that decided the two cases: the Federal Circuit and Ninth Circuit have been described as having the worst and second-worst reversal rates, respectively, among the federal courts of appeal. Instead, the Court denied both petitions for certiorari, thus leaving unanswered the question: does the Takings Clause have an expiration date?

Ask Americans what they think the First Amendment protects, and they will tell you “freedom of speech.”  Some will also mention “freedom of religion.”  But few if any will think of “freedom of assembly.”  In his provocative new book, Liberty’s Refuge, The Forgotten Freedom of Assembly, Washington University School of Law’s John Inazu argues that this is an important loss.

During the past decade, courts have struggled to reconcile anti-discrimination statutes with claims by private organizations to First Amendment protection for decisions regarding their missions and membership.  Can the Boy Scouts expel a gay Scoutmaster? (Boy Scouts of America v. Dale)  Can a state law school deny official recognition to a religious club that requires members to affirm certain beliefs regarding homosexuality? (Christian Legal Society v. Martinez)  In resolving these questions courts have frequently invoked the freedom of "expressive association," a phrase that appears nowhere in the text of the First Amendment but has been a part of judicial doctrine since the mid-twentieth century.  Professor Inazu argues that this "expressive association" mode of analysis is at least in part responsible for what he argues is inadequate protection for associational autonomy--and that a return to the more textually and historically grounded "right of the people peaceably to assemble" is necessary to recapture the benefits of a meaningful pluralism.  The Constitution contemplated forcefully dissenting political and expressive groups that would serve as a check on majority rule’s tendency to turn into a force for stifling conformity.  To maintain an environment in which these groups will flourish, Inazu contends, our First Amendment jurisprudence must recover a more robust conception of associational autonomy grounded in a better understanding of the centrality and breadth of the assembly right.  

Is a more robust conception of associational autonomy desirable?  Is it what the Constitution contemplates What about the rights of individuals or groups excluded from participation as a result of private discrimination What is the proper balance between social equality and organizational autonomy?  Join the Federalist Society and the American Enterprise Institute as we explore these and other questions in a panel discussion of John Inazu’s thoughtful new book.

Details:

Start : Tuesday, May 8, 2012 4:30 PM

End   : Tuesday, May 8, 2012 6:30 PM

Panelists:

• John Inazu, Washington University Law School
• Douglas Laycock, University of Virginia School of Law
• David Bernstein, George Mason University School of Law 
• Moderator: Hon. Janice Rogers Brown, U.S. Court of Appeals, D.C. Circuit

Location: American Enterprise Institute, 1150 17th St NW, Floor 12, Washington, DC 20036

Please register through the American Enterprise Institute's event webpage.

There is no charge for this event.

On March 28, the Supreme Court announced its decision in Sester v. U.S. The question in this case was whether a federal court can order that a federal criminal sentence begin to run after the criminal defendant finishes serving an anticipated state sentence that that has not yet been imposed by the state court.

In an opinion delivered by Justice Scalia, the Court held by a vote of 6-3 that a federal court has discretion to impose such a sentence, and affirmed the judgment of the lower courts.  Justice Breyer filed a dissenting opinion, which was joined by Justices Kennedy and Ginsburg.

To discuss the case, we have Allison Larsen, an assistant professor of Law at William and Mary Law School.

Click here to view this article on the source site »

The Miami Herald profiles Colonel James L. Pohl, the judge who will preside over the prosecution of five men accused to taking part in the September 11 attacks:

When President George W. Bush proposed razing Iraq’s Abu Ghraib prison in 2004, this American Army judge declared it a crime scene and forbade its demolition. When five years later President Barack Obama asked the Guantánamo war court to freeze all proceedings, the same judge refused the brand-new commander-in-chief’s request.

He’s Col. James L. Pohl, who has appointed himself to preside at the war crimes trial of the five men accused of orchestrating the Sept. 11 attacks.

It’s not that Pohl is unaware of rank after three decades in the Army. It’s simply not relevant in this colonel’s court.

Here’s how he scolded a prosecutor when the prison commander, an admiral, was late for court to testify after lunch recess in January: “Witnesses should be waiting either in the trailer at the back or outside,” the judge bristled, “and I really don’t care what their rank is.”

A soldier since the ’80s and a judge since 2000, Pohl has had judicial oversight of some of the most notorious Army cases of the post-Sept. 11 era.

•  He presided at the trials of nine soldiers found guilty of abusing detainees at the Abu Ghraib prison in Iraq.

•  He decided that U.S. Army psychiatrist Maj. Nidal Hassan should get a death-penalty trial for the 2009 shooting spree that killed 13 soldiers and wounded dozens more at Fort Hood, Texas.

•  In September, however, he found the opposite at a show-cause hearing for Army Sgt. John Russell. Unlike Hassan, Pohl ruled, Russell had “an undisputed mental disease or defect” that made it “inappropriate” to pursue a capital case for allegedly killing five troops at the combat stress center at Iraq’s Camp Liberty in May 2009.

•  Pohl also presided at the so-called “mercy killing” trial of an Army captain, a tank commander, who killed a critically wounded insurgent in May 2004, and was captured on an aerial drone’s videocam doing it.

Now, at a moment when most 60-year-old colonels are retiring from service, Pohl is chief military commissions judge, and has chosen to take on two of the most high-profile trials of his career: the 9/11 trial, and the trial of a man who allegedly engineered al Qaida’s 2000 USS Cole bombing.

Each case seeks the death penalty. Each is to be heard by a military commission, the tribunals that Bush had created after Sept. 11 and Obama ordered reformed upon taking office.

Saturday, Pohl will face off for the first time with Khalid Sheik Mohammed, who bragged that he masterminded 9/11 for al Qaida — wading into the case that’s been a lightning rod for criticism that the court was created to cover up torture.

Georgetown Law Professor Randy Barnett recently spoke at an event organized by the Harvard Law School Federalist Society.  As the law school reported:

Barnett, who represented the National Federation of Independent Businesses (NFIB) in their challenge to the Patient Protection and Affordable Care Act and attended the oral arguments last month as an observer for that organization, joined HLS Dean Martha L. Minow April 12 to discuss the case in a program sponsored by the HLS Federalist Society.

Minow introduced Barnett as “the person who’s most responsible for bringing public attention to this issue and identifying the structure of a constitutional challenge.”

Barnett characterized his ongoing constitutional challenge to the individual mandate as a rather lonely one when he took it up 2 ½ years ago after lawyer David Rivkin raised the issue in a Wall Street Journal op-ed piece and launched an online legal-blog debate.

“There was another law professor on that blog who posted a very snarky ‘Nobody can be serious about a constitutional challenge here,’” Barnett said. “And I just sort of decided, ‘Well, maybe I should say something.”

You can watch the full video of the event here.