A great day to read or re-read the supreme law of the United States of America.
A great day to read or re-read the supreme law of the United States of America.
Putting aside criminal cases, the stakes for all sides are perhaps never higher than in a class action case – mere certification of a class can increase the pressure to settle exponentially. But, of course, the class must be properly composed in order to be certified. In the recently-decided Wal-Mart v. Dukes case, the U.S. Supreme Court revisited some of the basic requirements for certification of a class of plaintiffs, including commonality. Other requirements of Rule 23 certification may surface in ongoing litigation stemming from the 2010 BP Deepwater Horizon oil spill, where defense attorneys are arguing, among other things, that the settlement agreement is being administered and interpreted overly broadly to include numerous class members who have not suffered any injury caused by BP. Our experts will discuss recent developments in class action litigation, including a pending petition for cert in the BP case. The Federalist Society presented this panel on September 4, 2014.
--Prof. Neal K. Katyal, Partner, Hogan Lovells, and Paul and Patricia Saunders Professor of National Security Law, Georgetown University Law Center
--Hon. Theodore B. Olson, Partner, Gibson Dunn & Crutcher LLP
--Moderator: Mr. Stuart S. Taylor, Jr., Nonresident Senior Fellow in Governance Studies, The Brookings Institution
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The Flint-Genesee Country Legal News reports:
Two U.S. senators and criminal justice experts reflected on the problem of overcriminalization in the United States resulting from the overlapping relationship between criminal and administrative law during an American Bar Association joint meeting last week on Capitol Hill.
Panelists at the program, “Criminal Law and the Administrative State: Defining and Enforcing Regulatory Crimes,” spoke about the regulatory frameworks that include civil and criminal penalties, and critics on both sides presented arguments about the proliferation of federal criminal violations and regulatory offenses.
“I believe federal overcriminalization, in particular, is detrimental in terms of the financial, social and human cost it imposes on our country,” said Sen. Mike Lee, R-Utah. “I’m far from alone in this regard; in fact, we are seeing increasing bipartisan sensitivity to overcriminalization issues and an increasing openness on the part of members of Congress to re-evaluate federal criminal laws and regulations with an eye toward making some common-sense incremental changes.”
According to some critics, including Lee, many of these offenses are established through extremely broad legal language and minimal “mens rea” (intent) requirements that leave too much authority for determining what constitutes criminal conduct in the hands of regulatory agencies and prosecutors.
“Federal overcriminalization is a serious problem of which something must be done,” Lee said. “We must take account of the lack of sufficient intent requirements in federal laws and regulations and ensure that innocent persons are not held criminally liable for otherwise innocent conduct.”
On the other hand, supporters of the current regulatory approach counter overcriminalization concerns with those of underenforcement.
“Let me open with a word of gratitude for regulation,” said Sen. Sheldon Whitehouse, D-R.I. “Medicines are not snake oil mysteries any longer, people are rarely burned or killed in boiler explosions, automobiles have airbags, smoke stacks have pollution controls, stock jobbers have a harder time gulling innocent investors, most insurance companies and policies actually pay when the insured hazard occurs, quacks and barbers can’t be doctors. We take for granted the safety and reliability that a regulated world has built.”
Regulation supporters, such as Whitehouse, argue that broadly worded laws and strong criminal penalties, combined with agency and prosecutorial discretion, are a reasonable and cost-effective way to get the level of deterrence needed to ensure compliance with important federal laws, including consumer protection safeguards and environmental protection.
“Regulation helps channel America’s competitive enterprise into valuable, helpful innovations instead of into new tricks and traps for consumers or new ways of cutting safety corners,” Whitehouse said. “Ask yourselves, would the American pharmaceutical industry be the world powerhouse that it is if patent medicine hucksters were still allowed to operate? Regulation helps set a positive frame for economic progress.”
Whitehouse agreed that regulation can sometimes be out of date or unduly burdensome, but he criticized the political corruption that occurs to advance interest groups’ commercial or special agendas in regards to regulations.
“To maximize the economic benefit of regulation, we have to keep regulations efficient and up to date, but my experience is this: When the deregulatory crowd comes to operationalize this principle, the target is rarely some obsolete technical regulation that properly needs updating,” Whitehouse said. “On the other side of the coin, there is a threat at least as great as burdensome regulation: the threat of regulatory capture, when powerful interests gain improper influence over regulatory agencies.”
Rachel E. Barkow, commissioner on the U.S. Sentencing Commission, offered remarks on the administration of criminal justice, noting that the criminal justice system is a regulatory system in itself, but that it lacks proper oversight mechanisms.
“The administration of criminal justice largely takes place outside courtrooms and is done by agencies,” Barkow said. The criminal justice system is “administrative in every important way, except it is not subject to any of the same legal and structural oversight mechanisms, which is something I think should change.”
The program was hosted by the ABA Criminal Justice Section, ABA Section of Administrative Law and Regulatory Practice, Administrative Conference of the United States, American Constitution Society and Federalist Society.
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.
The Federalist Society offers its sincere condolences to the friends and family of Laura Anne LaPlante, who passed away Friday, May 2, 2014. The Federalist Society joins her family, friends, and the University of Chicago Law community in mourning her loss.
Laura served as the 2013-2014 Federalist Society Student Chapter president at the University of Chicago Law School. Originally from Hancock, New Hampshire, she is survived by her parents and three siblings. Laura and her classmate Michael Wasil were passengers in a taxi which was struck head on by another vehicle. Michael remains in the hospital at this time, and our thoughts and prayers are with him as well.
Laura was a strong leader for our student chapter, as well as the Edmund Burke Society and St. Thomas Moore Society. She was also an accomplished student, a talented athlete, and she was graceful and kind to others. Laura was set to graduate this spring and move to Boston to work as an associate at Wilmer Hale. Several weeks ago, we were happy to announce that the University of Chicago student chapter, led by Laura and her team, won their bid to host our 34th Annual National Student Symposium in February of 2015.
We are immensely thankful for the leadership Laura provided to the Student Chapter of the Federalist Society at the University of Chicago. She had a rare combination of talent and goodness and made a difference in the lives of others in her too short life. We are the better for having known her.
The Dean of the University of Chicago Law School, Michael Schill, wrote the following:
“I cannot make sense of the passing of such a wonderful, vital young woman who would surely have done so much in her life to make the world a better place. At the same time, during Laura’s short time on earth she made an impact. Laura left each of us better human beings than we would have been in her absence. Her friendship, engagement and love enriched us.”
Our thoughts and prayers are with Laura and Michael’s families during this difficult time. Law student and lawyer members of the Federalist Society across the country join Laura’s family in grieving this loss, a testament to Laura’s lasting impact on those who knew her.
We do not currently have the details for arrangements or an address for condolences, but will share such information, as appropriate, when it is made available.
The Mayflower Renaissance Washington, DC Hotel
1127 Connecticut Ave NW
Washington, DC 20036
A key element of the Practice Groups' Executive Branch Review project is our annual conference. This year's Executive Branch Review Conference is scheduled for Wednesday, May 7th as a full day conference at the Mayflower Hotel in Washington, D.C.
We will offer up to 4 CLE credits for this conference.
Last updated on April 17 at 4:00 p.m.
Updates in red.
Welcome & Opening Address
9:00 – 9:30 a.m.
Suspension of Laws: What are the Limits of Executive Authority?
9:30 – 10:45 a.m.
Policy without Process?
9:30 – 10:45 a.m.
Disparate Impact Analysis
11:00 a.m. – 12:15 p.m.
The Internal Revenue Service
11:00 a.m. – 12:15 p.m.
The Contraceptive Mandate
11:00 a.m. – 12:15 p.m.
Luncheon Panel: Executive Power and the Role of the Coordinate Branches
12:30 p.m. – 2:00 p.m.
2:15 p.m. – 3:00 p.m.
Last updated on April 17 at 4:00 p.m.
Updates in red.
There is no cost to attend this event,
but there is a $50 charge if you wish to obtain CLE credits.
Lunch will be included.
Please register online to reserve your spot.
Contact the Mayflower Hotel directly for room reservations: (202) 347-3000.
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.
Roundtable Discussion: “BALANCING PRIVACY AND SECURITY”
Recently U.S. Attorney General Eric Holder, citing the Supreme Court's 5-4 decision in United States v. Windsor, urged the members of the National Association of Attorneys General to exercise their discretion to decline to defend state-level Defense of Marriage Acts (DOMA). State attorneys general of California, Pennsylvania, and Virginia, among others, have followed the Justice Department's lead in declining to defend such state laws. Colorado Attorney General John Suthers urged state attorneys general not to employ a "litigation veto" to nullify popularly enacted laws with which state attorneys general might disagree. What is the scope of a state attorney general's power to decline to execute or enforce state law on the basis that the law is or is thought to be unconstitutional and inconsistent with the oath to uphold the U.S. Constitution? What lessons, if any, may properly be drawn from the federal context and any Presidential authority to decline to enforce federal statutes that he views as unconstitutional? Do such instances of executive non-defense and non-enforcement amount to executive arrogation of legislative prerogative? Colorado Attorney General John Suthers and William & Mary Professor Neal Devins discussed these questions and engaged with the audience's comments and questions.
Listen to the podcast here.
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:
You can watch a video of the event here.
According to Columbia Law School:
A proposed constitutional amendment introducing term limits for U.S. Supreme Court justices could move the court further in the direction of a “living Constitution” approach to constitutional interpretation, said Columbia Law School Professor Thomas W. Merrill in a March 11 debate with Northwestern University School of Law Professor James Lindgren.
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:
You can watch a video of the event here.
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.
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.