FedSoc Blog

At FedSoc Conference, Ted Cruz Releases List of 76 “Lawless” Obama Actions


by Publius
Posted May 07, 2014, 2:37 PM

The Daily Caller reports on the Federalist Society's Second Annual Executive Branch Review Conference:

Republican Sen. Ted Cruz released a definitive list Wednesday of 76 “lawless” Obama administration actions and abuses of power.

Cruz’s “The Legal Limit Report No. 4,” obtained by The Daily Caller, delves into little-known and little-reported details of President Obama’s executive actions. Cruz [discussed] his report at the Federalist Society in the Promenade Ballroom of the Mayflower Hotel in Washington [on] Wednesday.

“Of all the troubling aspects of the Obama presidency, none is more dangerous than the President’s persistent pattern of lawlessness, his willingness to disregard the written law and instead enforce his own policies via executive fiat,” Cruz stated in the report’s introductory remarks.

“President Obama has openly defied [rule of law] by repeatedly suspending, delaying, and waiving portions of the laws that he is charged to enforce. When President Obama disagreed with federal immigration laws, he instructed the Justice Department to cease enforcing the laws. He did the same thing with federal welfare law, drug laws, and the federal Defense of Marriage Act,” Cruz wrote. “In the more than two centuries of our nation’s history, there is simply no precedent for the White House wantonly ignoring federal law and asking others to do the same.”

Cruz details 76 specific actions over eight chapters. We’ve listed eight of them, as chronicled by Cruz, below:

1. “Obama implemented portions of the DREAM Act by executive action”

2. “Ended some terror asylum restrictions”

3. “Recognized same sex marriage in Utah despite a Supreme Court stay on a court order allowing the institution”

4. “Illegally revealed the existence of sealed indictments in the Benghazi investigation”

5. “Illegally delayed Obamacare verification of eligibility for healthcare subsidies”

6. “Ordered Boeing to fire 1,000 employees in South Carolina and shut down a new factory because it was non-union”

7. “Terminated the pensions of 20,000 non-union Delphi employees in the GM bankruptcy.”

8. “Government agencies are engaging in ‘Operation Choke Point,’ where the government asks banks to ‘choke off’ access to financial services for customers engaging in conduct the Administration does not like—such as ‘ammunition sales.’”

You can watch the video of Cruz's remarks here.

Student Symposium Video: Balancing Privacy and Security


by Publius
Posted April 08, 2014, 4:53 PM

In an era where individuals increasingly entrust their data to third parties, how can the right balance be struck between the government’s need to collect information, and the individual’s right to privacy in that information? Does the Fourth Amendment adequately protect an individual’s rights in an era of rapidly advancing technology, or should Congress play a more active role in regulating this space? The University of Florida Law School FedSoc Chapter hosted this roundtable discussion at the 2014 Annual Student Symposium on Friday, March 7, 2014.

Introductory Remarks

  • Mr. Devon Westhill, Chairman, Symposium Executive Committee
  • Dean Robert H. Jerry II, University of Florida Levin College of Law


  • Mr. Steven G. Bradbury, Partner, Dechert LLP
  • Hon. Rachel L. Brand, Vice President & Chief Counsel for Regulatory Litigation, National Chamber Litigation Center, U.S. Chamber of Commerce; Member, Privacy & Civil Liberties Oversight Board
  • Mr. Julian Sanchez, Research Fellow, The Cato Institute
  • Prof. John Stinneford, Associate Professor of Law, University of Florida Levin College of Law
  • Mr. Ted Ullyot, Former General Counsel, Facebook
  • Moderator: Hon. William H. Pryor Jr., U.S. Court of Appeals, Eleventh Circuit

SCOTUSBlog Analysis of McCutcheon Campaign Finance Decision


by Publius
Posted April 02, 2014, 1:13 PM

Lyle Denniston comments at SCOTUSblog:

The Supreme Court pressed ahead on Wednesday with the majority’s constitutional view that more money flowing into politics is a good thing — even if much of it comes from rich donors.  By a five-to-four vote, the Court struck down the two-year ceilings that Congress has imposed on donations by individuals to presidential and congressional candidates, parties and some — but not all — political action groups.The main opinion delivered by Chief Justice John G. Roberts, Jr., said confidently that corruption in politics will be kept in check by caps — left intact — on how much each single donation can be.  Removing the ceilings on the total amounts that may given in each election cycle will not undermine those limits, Roberts predicted.

The decision was not as sweeping as the Court’s ruling four years ago, removing all restrictions on what corporations and labor unions can spend of their own money in federal campaigns (Citizens United v. Federal Election Commission), which has led to billions of dollars spent on politics through financing that is supposed to be independent of candidates or parties.  The new ruling leaves that option open if a donor does not want to directly support a candidate or a party committee and stay within the per-donation caps.

Even so, the practical result of the new ruling is almost sure to be that wealthy individuals favoring specific candidates or party positions will be able to spread their money around among more candidates and political groups.

Donors will get into legal trouble, the ruling emphasized, only if they demand a specific favor in policy or legislation in a direct exchange for the money they give.  That is the only kind of corruption that the First Amendment will allow the government to attack, the decision stressed.

The Chief Justice’s opinion said that other recent changes in campaign finance law will work to reduce the risks of abuse, and it offered several other ideas for new limits that it implied might be constitutional. Whether the votes are there in Congress to pass any of those suggestions is problematic.

Although the Roberts opinion spoke only for himself and three other Justices, Justice Clarence Thomas said he agreed with the result, making a majority for eliminating the two-year ceilings.  Thomas said he would have gone even further to free up even more donations in federal campaigns.  He would have overruled a 1976 decision (Buckley v. Valeo) that gives contributions less constitutional protection than spending during campaigns.  He added, though, that the Roberts opinion “continues to chip away” at the 1976 decision’s foundations.

The Roberts opinion was supported in full by Justices Samuel A. Alito, Jr., Anthony M. Kennedy, and Antonin Scalia.  Justice Stephen G. Breyer wrote for the dissenters, and orally announced the dissenters’ reasoning in a presentation that ran longer than the Chief Justice’s announcement of the ruling.  Breyer’s opinion was joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. . . .

In October 2013, the Federalist Society producted a post-argument SCOTUScast on the case with Derek Muller, Associate Professor of Law at the Pepperdine University School of Law. You can listen to it here.

Supreme Court Steps Into Software-Patent Debate


by Publius
Posted March 31, 2014, 8:35 AM

The Wall Street Journal reports:

The U.S. Supreme Court is wading into a messy debate over when software deserves a patent—an issue that is important to big technology companies such as Microsoft Corp. and Google Inc. yet has so far flummoxed the federal judiciary.

The high court will hear oral arguments Monday in an appeal brought by Alice Corp., whose patents on a computer program to reduce risk in financial transactions were ruled invalid by lower courts.

The thorny issue for the justices: how to distinguish innovative software designs from those that merely describe common ideas configured for a computer.

The issue arose from a 2007 lawsuit against Australia-based Alice by CLS Bank International, which sells risk-hedging services to foreign-exchange traders. New York's CLS Bank said Alice's patents did little more than describe a way of moving an ancient idea—the concept of escrow—to a computer, so shouldn't be eligible for patent protection.

Some patent experts say a ruling in favor of Alice could open the door to more software patents. That, in turn, could lead to more lawsuits involving ideas that should never have won protection in the first place.

Other people say a broad ruling on behalf of CLS Bank could force budding software developers to the sidelines by limiting protections for their work and shortchange others who have devoted hours and money to developing inventions.

Either way, a ruling could provide long-awaited guidelines on when computer programs qualify for patent protection.

Ten judges of the U.S. Court of Appeals for the Federal Circuit, which specializes in patent law, heard the case last year, raising hopes among inventors, tech-industry executives and patent lawyers that they would get some clarity. But the judges delivered more than 120 pages of opinions that only muddied the issue, triggering a collective groan through the patent world.

In the subsequent months, the debate over software patents has raged on.

Allowing patents on many computer programs will only block innovation, says Suzanne Michel, a senior patent counsel at Google. "You don't want [to allow patents] that pre-empt someone from writing a better program, one that's faster or more secure or more efficient," she says.

Google and other prominent tech companies have been hit with a rash of software-patent lawsuits in recent years, many on behalf of firms that license and litigate over patents but typically don't develop their patents into products.

Google says a glut of bogus software patents is largely to blame for the proliferation of such firms, which often are described by detractors as "patent trolls." . . .

In May 2013, the Federalist Society held a panel discussion on "Is the Patent System Working or Broken? A Discussion with Four Distinguished Federal Judges." It was co-sponsored by FedSoc's Intellectual Property Practice Group and the Center for the Protection of Intellectual Property at George Mason University School of Law. Participating were:

  • Hon. Arthur J. Gajarsa, former Judge, U.S. Court of Appeals, Federal Circuit
  • Hon. Paul R. Michel, former Chief Judge, U.S. Court of Appeals, Federal Circuit
  • Hon. Richard A. Posner, Judge, U.S. Court of Appeals, Seventh Circuit
  • Hon. Douglas H. Ginsburg, Senior Circuit Judge, U.S. Court of Appeals, D.C. Circuit and Professor of Law, George Mason University School of Law - Moderator

You can watch a video of the event here.

Colorado Supreme Court OKs Lawyers to Work with Marijuana Businesses


by Publius
Posted March 26, 2014, 1:43 PM

According to the Denver Post:

Colorado's lawyers now have the state's permission to work with marijuana businesses, after the Colorado Supreme Court approved a rule change Monday that eliminates the threat of ethics sanctions.

The new rule gives lawyers the go-ahead to work with marijuana businesses — even though those businesses are breaking federal law — so long as the lawyers don't help businesses also break state law. The updated rule, signed by Chief Justice Nancy Rice, states that a lawyer "may assist a client in conduct that the lawyer reasonably believes is permitted by these constitutional provisions and the statutes, regulations, orders, and other state and local provisions implementing them." The rule requires lawyers also to advise their clients about federal marijuana laws and policies.

The notice of the new rule states that justices Nathan Coats and Allison Eid dissented, though no explanation was given.

Colorado's constitutional amendments legalizing both medical and recreational marijuana left Colorado lawyers in a professional pickle. Because ethics rules prevent lawyers from helping clients do illegal things, the Colorado Bar Association last year declared that lawyers could be in trouble for doing more than giving basic advice to marijuana businesses.

Arranging a lease, negotiating a contract or soliciting financial help would all violate ethics rules, according to the bar association's analysis.

Though no attorney had ever been disciplined for working with a marijuana business, the opinion alarmed the growing number of lawyers in Colorado who specialize in cannabis law. They argued that lawyers are crucial in helping marijuana businesses negotiate Colorado's complicated regulations.

The Supreme Court held a public hearing on the rule change earlier this month.

In December 2013, the Federalist Society's Practice Groups sponsored a panel discussion on "Marijuana and the States: How Should Federalism Principles Inform the Federal Government’s Response to State Marijuana Initiatives?" It featured:

  • Mr. Robert D. Alt, President, The Buckeye Institute for Public Policy Solutions
  • Dr. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law
  • Mr. Michael Francisco, Assistant Solicitor General, Colorado
  • Hon. George J. Terwilliger III, Partner, Morgan Lewis & Bockius LLP
  • Moderator: Prof. Jonathan H. Adler, Johan Verheij Memorial Professor of Law, Case Western Reserve University School of Law

You can watch a video of the event here.

For-Profit Company Doesn’t Mean No Conscience


by Publius
Posted March 21, 2014, 9:28 AM

Joshua Hawley--associate professor of law at the University of Missouri and a counsel to the Becket Fund for Religious Liberty, which represents Hobby Lobby--comments in USA Today:

Next week, the Supreme Court will hear oral arguments in Sebelius v. Hobby Lobby, the case brought by the Green family, who owns the company, challenging the Obama administration's mandate that health insurance cover contraceptives. The case will help determine whether conscience has a protected place in business.

The Obama administration contends that starting a for-profit business means leaving religious liberty behind. The administration has effectively told the Supreme Court that for-profit companies have no right to act on moral convictions the government opposes. They are about profits. That position is deeply mistaken.

For one thing, it ignores the law. The Religious Freedom Restoration Act extends religious liberty to corporations without regard to their for-profit and non-profit status.

More important, the administration's position betrays a remarkably cramped view of free enterprise. Such sharp distinction between conscience and profit-making simply does not exist for many American businesses — nor should it.

Many entrepreneurs embrace profit-making and charitable purposes. Companies such as shoes seller Toms and eyeglass firm Warby Parker sell products at a profit with a pledge to devote part of their earnings to the needy. The number of for-profit businesses with a built-in charitable dimension has proliferated.

Other businesses forgo profits in order to honor their convictions. Gap Inc. increased its starting wage for employees out of a sense of social responsibility. CVS Caremark says it decided to stop selling tobacco products rather than continue to violate the company's social mission.

This combination of conscience and enterprise is a vital part of our free-market tradition. If the 2008 financial debacle taught anything, it is that focus on profits above all can cause terrible damage. It was a profits-first mentality that encouraged lenders to deceive customers, ratings agencies to deceive banks, and banks to deceive each other.

American business needs more conscience, not less, whether from religious motivation like Hobby Lobby or from secular intentions. And that is what American consumers want, too. Fully 80% of Americans would prefer to shop at businesses that embrace a social mission.

Hobby Lobby is one of those businesses. Since the chain started, David and Barbara Green have always wanted Hobby Lobby to be about more than profits. That's why the Greens start employees at nearly double the minimum wage and offer generous health benefits. It's why they give their employees extra time off to spend with their families and donate large portions of company profits to those in need.

That's also why the Greens object to having their health plan fund the four (of the 20 legally available) contraceptives that they believe can cause an abortion, something the Greens believe is wrong.

Not everyone agrees with the Greens' convictions, just as not everyone agrees with Starbucks' support of gay marriage. The point is, companies should be encouraged to have a conscience not penalized.

At FedSoc's 15th Annual Faculty Conference, participating in a panel for young scholars, Hawley delivered a paper on "The Transformative Twelfth Amendment." You can watch a video of his talk here.

Event Video: FDA Involvement in Off-Label Drug Use


by Publius
Posted March 19, 2014, 6:56 PM

On January 13, 2014 the Southwestern Law School Federalist Society student chapter hosted a debate about the FDA's role in regulating off-label drug use featuring Professor Richard Epstein, the Laurence A. Tisch Professor of Law at NYU and the Kirsten Bedford Senior Fellow at the Hoover Institution, and Ryan Abbott, Associate Professor of Law at Southwestern Law School and Visiting Assistant Professor of Medicine at the David Geffen School of Medicine at UCLA.

Before a drug can be sold legally in the United States, the Food and Drug Administration (FDA) must approve it as safe and effective for a particular indication or use — the use then appears on the drug's label. Federal law, however, allows doctors to prescribe drugs that the FDA has approved for one indication for any other indication, even though the FDA never evaluated the safety or efficacy of the drug for that use.

Off-label prescribing is an integral part of modern-day medicine. Patients may benefit when they receive drugs or devices in contexts not approved by the FDA. In fact, in some instances an off-label use may be the standard of care for a particular health problem. However, off-label prescribing can also harm patients, especially when an off-label use lacks a solid evidentiary basis.

For this reason, the FDA forbids drug companies from promoting their own products for off-label use, except for certain activities such as disseminating research literature and sponsoring educational programs. In recent years, civil and criminal actions against drug companies for illegal promotion for off-label use have proliferated, leading to many large settlements. For example, in July 2012, GlaxoSmithKline pled guilty and paid $3 billion to resolve criminal and civil liability arising from the company's unlawful prescription drug promotion, failure to report safety data, and false price reporting practices.

As a result of this recent litigation, many have questioned the FDA's current role in regulation of off-label use and whether more or less intervention is needed. This debate sought to address these very issues.

Both Professors have written about FDA regulations. For example, Professor Epstein in his book, Overdose: How Excessive Government Regulation Stifles Pharmaceutical Innovation, and in an article in the Minnesota Law Review, "Against Permititis: Why Voluntary Organizations Should Regulate the Use of Cancer Drugs." Professor Abbott has written about FDA regulations in the Iowa Law Review, Big Data and Pharmacovigilance: Using Health Information Exchanges to Revolutionize Drug Safety, and he has an article forthcoming with Ian Ayres at Yale Law School on Mechanisms for Regulating Off-Label Drug Use.


  • Prof. Ryan Abbott, Southwestern Law School
  • Prof. Richard Epstein, NYU Law School
  • Moderator: Dean Susan Prager, Southwestern Law School

Benjamin Wittes: A Modest Proposal for NSA Regarding Stolen Trade Secrets


by Publius
Posted March 18, 2014, 5:09 PM

Benjamin Wittes comments at Lawfare:

I had an idea the other day—a way for NSA to serve the national interest, do good for humanity, and improve its public image all at once. Drum roll, please! NSA should get into the business of publishing trade secrets stolen from companies in countries that conduct active industrial espionage against U.S. companies.

Before you dismiss this as totally nuts, let me spell it out, because it’s actually a thing of beauty.

The U.S. position about industrial espionage is that we don’t do it to advantage our own companies. The caveat leaves, of course, a gaping hole, actually more than one gaping hole. We do spy on foreign companies, just for foreign intelligence—not economic competitiveness—reasons. This difference is highly salient to U.S. policymakers, as it allows them to wax outraged about Chinese intellectual property theft from U.S. companies, but it doesn’t inhibit the kind of industrial espionage that actually serves U.S. interests. The trouble is that there’s no particular reason for a country with different strategic interests than the U.S.—say, a giant manufacturing economy with no overseas military commitments which is looking to get into higher-end manufacturing—to sign on to the underlying values that drive this supposed principle. So our respect for intellectual property as somehow outside of the realm of legitimate espionage has little claim on the Chinese or the French. And all the whining in the world about their behavior will not change the fact that their strategic interests and ours are different here, and we both have intelligence doctrines and practices that reflect our interests.

So the question is how we could alter U.S. intelligence doctrine so as to give countries that steal our intellectual property some disincentive to do so. I propose the following: the U.S. should publicly designate those countries that actively target U.S. companies for intellectual property theft, and it should adopt a policy of stealing IP from those countries and publishing it publicly for general use. . . .

In March 2014, Wittes took part in a panel discussion on the NSA Telephone Metadata Program. You can watch a video of the event here.

Irina Manta on the Constitutional Flaws of Intellectual Property Prosecutions


by Publius
Posted February 19, 2014, 4:20 PM

Will Baude, assistant professor at the University of Chicago Law School, comments at the Volokh Conspiracy:

A while ago, over at our old site, I posted about a technical but important question at the intersection of constitutional law and criminal procedure: when some fact is necessary in order for a federal criminal statute to be constitutional (sometimes called, a “jurisdictional fact”), does the government have to prove it, and to whom?

A new article by my friend Irina Manta provides an excellent example of how this can come up. Manta argues that current criminal prosecutions for copyright and trademark violations fall short of the constitutional standard. From the abstract:

Our current methods of imposing criminal convictions on defendants for copyright and trademark infringement are constitutionally defective. Previous work has argued that due process under the Sixth Amendment requires prosecutors to prove every element of a crime beyond a reasonable doubt, including the jurisdictional element. Applying this theory to criminal trademark counterfeiting results in the conclusion that prosecutors should have to demonstrate that an infringing mark needs to have traveled in or affected interstate commerce, which is currently not mandated. Parallel to this construction of the Commerce Clause, criminal prosecutors would also have to prove that Congress has the power to reach individual copyright infringers under the Intellectual Property Clause. This presents little difficulty under the traditional understanding of the clause as prosecutors would only need to show that convicting a defendant serves to secure the rights of authors. Some contemporary scholars have argued, however, that the text of the Intellectual Property Clause must be understood to mean that Congress can only enact copyright legislation if it serves to promote progress. If this notion is correct and is combined with this article’s theory of the requirements of the Sixth Amendment, prosecutors would have to prove that individual convictions will serve to promote progress before courts can impose sentences in given cases. While this could raise costs and has the potential to reduce the number of cases brought, prosecutors may have little choice but to introduce expert testimony to demonstrate an effect on progress, similar to the use of expert evidence in antitrust litigation and related contexts.

In January 2014, Manta delivered a talk on intellectual property at the Federalist Society's 16th Annual Faculty Conference. She participated in a a panel discussion on the question “Is IP Property or Government-Conferred Monopoly?” You can read about the event and watch a video of it here.

George W. Dent: Toward Improved Intellectual Diversity in Law Schools


by Publius
Posted February 19, 2014, 11:06 AM

In April 2013, the Harvard Federalist Society and the Milbank Tweed Conference Fund hosted a conference on “Intellectual Diversity and the Legal Academy.” (You can find video of the event here.) The Harvard Journal of Law & Public Policy recently published the remarks of several participants, including George W. Dent, Jr., professor at Case Western Reserve University School of Law. In a paper (PDF here) adapted from his presentation, Dent writes:

The organizers and supporters of the conference on “Intellectual Diversity and the Legal Academy”—the Federalist Society,  Harvard Law School, and Milbank, Tweed, Hadley & McCloy LLP—deserve great credit. Law school faculties tilt heavily to the political left, and there is no plausible explanation for this tilt other than discrimination against scholars who are politically incorrect. This is a serious problem for students, who do not get the full range of views in important current debates. The problem is of special concern because advocates must understand the positions of their opponents, beginning with their fundamental premises.

Some participants in the Harvard Federalist Society’s conference argued that the views of the instructor are unimportant because good teachers explain both sides of each case. No doubt many teachers try to do so, but, as Professor Robert George has observed, opponents usually cannot justify a viewpoint as well as its supporters can. Moreover, the experience of students suggests that many instructors do not even try to give both sides. Many students say that they rarely hear conservative or libertarian viewpoints from their instructors and that, indeed, those viewpoints are often ridiculed in class.

The ideological imbalance of law faculties is also a problem for legal education and legal scholarship. Our adversarial judicial system is built on the premise that the truth is best discovered through a structured contest between parties to a dispute, and the free speech commitment of the First Amendment rests in part on the belief that the truth best emerges through competition in the marketplace of ideas. In law faculties, however, views are largely limited to a fairly narrow range on the left of our national political spectrum. The ideological imbalance produces a kind of partisan chain reaction or echo chamber. . . .

Michael Stokes Paulsen: The Uneasy Case for Intellectual Diversity in Legal Academia


by Publius
Posted February 11, 2014, 10:56 AM

In April 2013, the Harvard Federalist Society and the Milbank Tweed Conference Fund hosted a conference on “Intellectual Diversity and the Legal Academy.” (You can find video of the event here.) The Harvard Journal of Law & Public Policy recently published the remarks of several participants, including Michael Stokes Paulsen, Distinguished University Chair and Professor at the University of St. Thomas School of Law. In a paper (PDF here) adapted from his presentation, Paulsen writes:

Might I suggest that intellectual diversity in legal academia is an overrated commodity? That it is overvalued in theory as well as undervalued in practice? Might I suggest that the value of intellectual diversity is distinctly secondary and instrumental? That intellectual rigor and quality, and the search for intellectual “Truth,” (with a capital T) are the true prime values, and that these values are not necessarily furthered by the quest for “diverse views,” simpliciter, but flow more reliably from other academic values, virtues, and attributes? And that the primary value of the argument for intellectual diversity, today, is that it serves as a good and effective rhetorical trope with which to bludgeon the currently entrenched Illiberal Academic Orthodox Establishment in the terms of a value they pretend to embrace?

Announcing the Launch of the Richard Epstein University


Posted February 03, 2014, 11:15 AM

According to the new "Epstein University" website:

Epstein University is a complete education in classical liberal theory by its greatest expositor, Richard Epstein. Its format is a series of audio recordings culled from videos and podcasts freely available online. They focus on the key concepts that are essential to understanding the Epsteinian approach to the social sciences.

Fans of Milton Friedman, Hayek, and the like will find that Epstein fine-tunes familiar ideas to perfection. If this is your first exposure to classical liberal ideas, expect to be challenged by the most rigorous version of arguments that are far from the mainstream.

This project is organized by Epstein fans who found each other through the Richard Epstein fan site. We are not associated with Mr. Epstein, and he would probably be embarrassed to learn that he has a fan site. Our mission is to promote Epstein's work as an authority, a kind of OED for high-end "right wing" political theory that works out the most difficult questions with unmatched precision.

Epstein speaks quickly, so pay close attention and rewind frequently. We encourage you to share your thoughts and questions by commenting on the posts, but no trolling, please. These sections are only an introduction to Richard Epstein and are by no means comprehensive. We hope that they will inspire you to explore the inexhaustible genius of the world's greatest thinker.

Here are some of Epstein's recent collaborations with the Federalist Society:

Marvin M. Brandt Revocable Trust v. United States Post-Argument SCOTUScast
SCOTUScast 1-22-14 featuring Richard Epstein
January 22, 2014


Patent Re-Reform in Congress - Podcast
Intellectual Property Practice Group Podcast
November 21, 2013
Intellectual Property, Free Markets and Competition Policy - Event Audio/Video
2013 National Lawyers Convention
November 20, 2013
Showcase Panel I: Textualism and the Bill of Rights - Event Audio/Video
2013 National Lawyers Convention
November 20, 2013

Snowden: What’s the Harm?


by Publius
Posted January 30, 2014, 1:58 PM

Joel Brenner comments at Lawfare:

What harm has Edward Snowden done to his country?

When Snowden asserts that the National Security Agency listens to encrypted Russian diplomatic traffic, it takes the Russians about twenty minutes to shut it down.  An operation like that can take many years to put in place.  When he explains exactly how NSA can implant devices that make it possible to extract information even from isolated networks of hostile governments, those operations will die on the vine.  When he identifies specific networks of adversaries that we have penetrated and the exact locations from which we have done it, he effectively shuts those operations down.  When he and his backers assert that NSA penetrates Google and Yahoo and Facebook servers overseas—when the truth is that NSA may target the foreign terrorist-linked users of those services—he wounds the businesses of creative, successful American companies.  When he identifies legitimate, and legitimately secret, arrangements by which foreign governments cooperate with the United States in pooling resources to track foreign terrorists, he sows pandemonium among Western allies.  When you educate terrorists day after day with these and other revelations, they learn their lessons, and indeed collection against terrorist networks has fallen off sharply.  These are the hostile actions of a self-righteous megalomaniac—hostile to the United States, hostile to liberal democracy, hostile to the West—and it is impossible to avoid the conclusion that their results were intended.

That Snowden also started an overdue public discussion of a metadata collection program authorized by Congress and more than a dozen federal judges—but not understood by many Americans—cannot be denied.  But those disclosures comprise only a fraction of his program of stealing and broadcasting classified information that otherwise has nothing to do with the privacy and civil liberties of citizens of the United States and allied nations. . . .

In November 2013, at FedSoc's National Lawyers Convention, Brenner participated in a panel discussion on "Cybersecurity – The Policy and Politics of a Leading National Security Threat." Also participating were:

  • Mr. Steven G. Bradbury, Partner, Dechert LLP and former head, Office of Legal Counsel, United States Department of Justice
  • Ms. Michelle Richardson, Legislative Counsel, American Civil Liberties Union
  • Mr. Paul Rosenzweig, Red Branch Law and Consulting and former Deputy Assistant Secretary for Policy, U.S. Department of Homeland Security Principal
  • Prof. John Choon Yoo, Emanuel S. Heller Professor of Law, University of California, Berkeley Boalt Hall School of Law
  • Moderator: Mr. Vincent J. Vitkowsky, Chairman, International & National Security Law Practice Group, the Federalist Society

You can watch a video of the discussion here.

L.A. Woman Sues McDonald’s Over Hot Coffee, 20 Years After Huge Verdict


by Publius
Posted January 10, 2014, 9:44 AM

The Los Angeles Times reports:

A woman has filed suit against McDonald’s Corp., saying she was burned by hot coffee that spilled on her at one of the fast-food chain’s Los Angeles restaurants.

The lawsuit comes 20 years after a jury awarded $2.9 million to a woman who was badly burned after she spilled hot coffee into her lap at a McDonald’s in Albuquerque. That verdict was widely criticized and became a rallying cry for advocates of legal reform.

A judge later reduced the verdict to $640,000 and the case settled out of court for an undisclosed amount.

The new case was filed by Paulette Carr, who said she was injured Jan. 12, 2012, after ordering the coffee at the drive-through window of a McDonald’s on Sepulveda Boulevard in Van Nuys. She seeks unspecified monetary damages in the lawsuit, filed Tuesday in Los Angeles County Superior Court.

“The lid for the hot coffee was negligently, carelessly and improperly placed on the coffee cup … resulting in the lid coming off the top of the coffee at the window, causing the hot coffee to spill onto the plaintiff,” Carr said in the lawsuit.

The lawsuit does not describe the severity of Carr’s injuries. Her attorney, Sheri Manning, did not respond to a request for comment. A McDonald’s spokeswoman also did not respond to a request for comment.

The 1994 verdict attracted worldwide media attention and was mocked by radio and television talk-show hosts and in one episode of the television comedy, “Seinfeld.” The verdict was also cited by proponents of tort reform.

Relatives of the woman injured in the 1992 coffee spill said the verdict was justified, noting the woman suffered third-degree burns that required skin graft surgery. They said McDonald’s directed its franchises to serve coffee at dangerously hot levels.

On September 9, 2010, the Louisiana State Student Chapter of the Federalist Society hosted a panel discussion on tort reform titled "The Law of McDonald's:
Spilled Coffee, Obesity Laws, and Prank Phone Calls
." Participating were:

  • Prof. William R. Corbett, Louisiana State University Law Center
  • Mr. Theodore H. Frank, Adjunct Fellow, Manhattan Institute for Policy Research and President, Center for Class Action Fairness
  • Introduction: Mr. Mark Andrew Hill, President, Louisiana State Student Chapter

You can watch a video of the event here.

Sen. Cruz Publishes Harvard Law Review Article on the Limits on the Treaty Power


by Publius
Posted January 08, 2014, 5:15 PM

The latest edition of the Harvard Law Review features an article by Senator Ted Cruz (R-TX) on the limits of the treaty power. The article begins:

During Justice Sotomayor's Senate Judiciary Committee confirmation hearing, she rightly stated that "American law does not permit the use of foreign law or international law to interpret the Constitution." But she also correctly recognized that some U.S. laws rely upon certain international law sources. For instance, the Alien Tort Statute "allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law."

Treaties are probably the most prevalent mechanism by which domestic law adopts international law. A treaty is "primarily a compact between independent nations." Article II, Section 2 of the Constitution gives the President the power "to make Treaties, provided two thirds of the Senators present concur." And the Supremacy Clause provides that "treaties," like statutes, count as "the supreme law of the land." Some treaties "automatically have effect as domestic law" — these are called self-executing treaties. Other treaties "constitute international law commitments," but they "do not by themselves function as binding federal law" — these are called non-self-executing treaties.

Because treaties are the supreme law of the land, they could potentially become a vehicle for the federal government either to give away power to international actors or to accumulate power otherwise reserved for the states or individuals. Either possibility can be prevented if sufficient limits are placed on the federal government's authority to make and implement treaties. Some treaties, like the Arms Trade Treaty, the United Nations Convention on the Law of the Sea, and the Convention on the Rights of Persons with Disabilities, purport to let international actors set policy in areas already regulated by the federal government. These and other treaties could be used to infringe on state sovereignty. Many commentators are chomping at the bit for the federal government to make or implement treaties as a way of enacting laws that the Supreme Court has otherwise held as exceeding the federal government's powers. As Professor Nicholas Rosenkranz noted, scholars have even suggested that the International Covenant on Civil and Political Rights could resuscitate the Religious Freedom Restoration Act partially invalidated in City of Boerne v. Flores or the Violence Against Women Act partially invalidated in United States v. Morrison.

With treaties potentially supplanting federal and state governmental authority, the President and Senate should carefully scrutinize all treaties, as a policy matter. We must jealously guard the separation of powers and state sovereignty if we are to preserve the constitutional structure our Framers gave us.

At the same time, our courts must scrutinize the federal government's powers to make and implement treaties. Our federal government is one of enumerated, limited powers, and the courts should not let the treaty power become a loophole that jettisons the very real limits on the federal government's authority.

Luckily, the Roberts Court has signaled that it will recognize the limits on the federal government's treaty power. As Solicitor General of Texas, I had the privilege of arguing Medellín v. Texas, which recognized critical limits on the federal government's power to use a non-self-executing treaty to supersede state law. . . .

Senator Cruz delivered an address in November 2013 at the Federalist Society's Annual National Lawyers Convention. You can watch a video of his remarks here.




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