FedSoc Blog

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

Podcast: Do State Attorneys General Have a Duty to Defend State Laws?


by Publius
Posted April 08, 2014, 8:41 AM

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.


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.

Columbia FedSoc Chapter Hosts Debate on Term Limits for SCOTUS Justices


by Publius
Posted March 27, 2014, 11:26 AM

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.

Lindgren, a former classmate and colleague of Merrill’s at the University of Chicago and Northwestern respectively, began the debate advocating a constitutional amendment instituting term limits for Supreme Court justices. He proposed that, after a period of transition from the current system, justices be limited to 18-year terms so that a new member would be nominated in each odd year, giving presidents 2 nominees for each 4-year executive term. He presented evidence demonstrating that in recent decades justices have tended to linger on the court longer than their predecessors, and argued that term limits would help return the Supreme Court to its historic norm of shorter terms.
“Except for the state of Rhode Island, no other western jurisdiction has life tenure for high court justices,” Lindgren said. “Term limits would help usher out judges with mental decrepitude and loss of stamina, eliminate strategic retirement for political reasons, reduce animosity in confirmation, and return to traditional levels of judicial independence.”
Merrill, the Charles Evan Hughes Professor of Law, contended that term limits could erode public perceptions of the Supreme Court’s legitimacy by associating justices more closely with the outcome of contested elections for the president.
“Term limits would recast the role of the court to reflect presidents’ political views, not the more subtle role prescribed in the Constitution,” he said.
Referencing his prior service as deputy solicitor general, Merrill suggested that with or without term limits the Supreme Court might be too rarified and insulated to afford the American citizenry a voice in the judicial process.
“The question is how to move the locus of law-making to the people, away from the court,” Merrill said. “We’re stuck with a situation where justices effectively captured by their law clerks make decisions without necessarily referencing the views of the polity.”
The debate was sponsored by the Columbia Law School Federalist Society.

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

Univ. Florida Law School Hosts Federalist Society’s 2014 National Student Symposium


by Publius
Posted March 18, 2014, 9:41 AM

Florida Law Online reports:

For 33 years the Federalist Society has held its national student symposium exclusively at law schools ranked in the top 15.

But that changed March 7-8, when law students, lawyers and professors from around the nation traveled to Gainesville for the 33rd National Federalist Society Student Symposium, hosted by UF Law’s Federalist Society’s chapter.

The conference focused on the balance between freedom and national security, with the help of myriad expert speakers. It received stellar reviews from attendees, said Devon Westhill (3L), president of UF Law’s Federalist Society, who noted how humbled he was by the turnout of nearly 500 people. “We had many guests who traveled thousands of miles to (get here),” Westhill added, “(and) we want to thank them for trusting in us to deliver.”

Perhaps the most anticipated event of the two-day symposium was a speech from keynote Judge Michael Mukasey, who served as 81st attorney general of the United States under George W. Bush. During a Saturday night dinner banquet, Mukasey addressed what he called a “crisis in U.S. intelligence gathering.”

“It’s a multifaceted crisis in which information about our electronic intelligence gathering capability has been leaked to the public — not only by Edward Snowden and (Chelsea) Bradley Manning, but also by government officials,” Mukasey said. “And the process, of course, has been disclosed also to those who mean us harm, including not only terrorist groups but also state actors like China and Iran.”

The cost of a “risk-averse” attitude toward intelligence gathering, he continued, was decided to be greater than risks to intrusions on freedom and privacy after 9/11 occurred. Now that is in question once more, thanks to “horn-tooters” Snowden and Manning, Mukasey said before the attentive crowd in the Reitz Union’s Grand Ballroom.

“There’s been a cascade of misinformation about the NSA’s intelligence-gathering capability that has generated pressure from both the left and the right of the political spectrum to severely restrict the gathering of intelligence that is this country’s first and in some cases its only line of defense,” Mukasey said.

Prior to Mukasey’s closing speech at the banquet, Friday kicked off with a roundtable discussion on “Balancing Privacy and Security.” Panelists discussed issues and solutions surrounding privacy and security in a technological world. A debate immediately followed the talk and addressed the question, “Should we better protect government secrets and punish leaks more severely?”

Some of the featured panelists included: Ted Ullyot, former general counsel of Facebook; Steven G. Bradbury, of Dechert LLP; Rachel L. Brand, of Privacy and Civil Liberties Oversight Board; UF Law Professor John Stinneford; Julian Sanchez, of the Cato Institute; and moderator Judge Bill Pryor, of the U.S. Court of Appeals for the 11th Circuit; and debaters: New York Law School Professor Nadine Strossen and Roger Pilon, of the Cato Institute; and Judge Jerry Smith, U.S. Court of Appeals for the 5th Circuit, as moderator.

Friday evening closed with a reception at the University of Florida President’s House, where Congressman Ted Yoho was present to greet participants, and Marco Rubio spoke via video.

On Saturday, attendees chose among panels and debates including “Cybersecurity and the NSA,” “Is the FISA court too secret,” “Detained suspected terrorists try in military courts or civilian courts,” and “Drones and presidential authority.”

Saturday’s speakers included Stewart Baker, of Steptoe & Johnson; Professor Randy Barnett, of Georgetown University Law Center; Professor Jeremy Rabkin, of George Mason University School of Law; Alex Abdo, of the American Civil Liberties Union; Gregory McNeal, of Pepperdine University School of Law; Florida Supreme Court Justice Charles T. Canady; Professor Laura Donohue, of Georgetown University Law Center; and Florida Supreme Court Chief Justice Ricky Polston, among others.

“I am proud to announce that the Federalist Society national office considers this student symposium to be the very best in the history of the organization,” Westhill wrote in an email. “It is refreshing to know that we have now set the standard among an elite group of schools to have ever hosted this prestigious event in its 33 years. I think our success serves to demonstrate the University of Florida’s position as a preeminent national institution.”

To view more photos, view the album on UF Law’s Facebook page.

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. . . .

Upcoming FedSoc Symposium Feb. 24: The NSA, Security, Privacy, and Intelligence


by Publius
Posted February 12, 2014, 1:08 PM

The NSA, Security, Privacy, and Intelligence

International & National Security Law Practice Group Symposium

In the 12 years since 9/11, as the national security threat matrix has become increasingly complex, technological advances have expanded intelligence gathering capabilities significantly. Recently, public concern about government monitoring of individuals has come to the forefront of the discussion. To address the intersection of security, privacy, and intelligence, the President has proposed several reforms, and is studying others in consultation with Congress. This Symposium will analyze and offer observations on those proposals.


10:30 – 10:50 a.m.

Welcome and Introduction
10:50 a.m.

Panel I: Foreign Intelligence Collection and the FISA Court
11:00 a.m – 12:30 p.m.

  • Mr. Harley Geiger, Senior Counsel and Deputy Director, Freedom, Security and Surveillance Project, Center for Democracy & Technology
  • Prof. Peter S. Margulies, Roger Williams University School of Law
  • Mr. Julian Sánchez, Research Fellow, The Cato Institute
  • Hon. Honorable Kenneth L. Wainstein, Partner, Cadwalader, Wickersham & Taft LLP, former U.S. Homeland Security Advisor, and former Assistant U.S. Attorney General for National Security
  • Moderator: Mr. Vincent J. Vitkowsky, Chairman, International & National Security Law Practice Group, The Federalist Society

12:30 – 1:45 p.m.

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

Panel II: The NSA Telephone Metadata Program
2:00 p.m. – 3:30 p.m.

  • Mr. Steven G. Bradbury, Partner, Dechert LLP, and former head of the Office of Legal Counsel, U.S. Department of Justice
  • Mr. Jim Harper, Director of Information Policy Studies, Cato Institute
  • Mr. Benjamin Wittes, Senior Fellow, Governance Studies, The Brookings Institution
  • Moderator: Prof. Nathan A. Sales, George Mason University School of Law



Registration details:

Lunch will be served. There is no cost to attend this event.

Please register online.

Can California Public-Employee Pensions Be Reformed?


by Publius
Posted February 11, 2014, 5:05 PM

PublicCEO reports:

Almost everyone acknowledges that California’s public pension system needs reform. Gov. Jerry Brown brought up reform in his his Jan. 2014 budget proposal for fiscal year 2014-15, which begins on July 1:

“Future liabilities — to schools, public employees’ pensions and retirement health benefits, infrastructure debt, deferred maintenance, and unemployment insurance — total $355 billion. These liabilities were built up over decades, and likewise, it will take decades to pay them off.”

Now, a new view on fixing the pensions comes from Alexander “Sasha” Volokh, a professor at the Emory University Law School in Atlanta.

Volokh has been writing a series of “white papers” for the Federalist Society on public pension and public employee compensation (see here and here).  The Federalist Society is a group of conservatives and libertarians that favors decentralized government and local control.

In his recent white paper, “Can We Fix the ‘California Rule’ for Public Employee Pensions?” he moves from descriptions to prescriptions for fixing the state’s perpetual deficit spending on pensions.

California rule

Volokh defines the “California Rule” as:

“[The] constitutional protection not only to the amount of public employees’ pensions that has been earned by past service, but also to employees’ right to keep earning a pension based on rules that are at least as generous for as long as they stay employed.” (emphasis in original)

A problem Volokh identifies is that public employees and retirees consider their pensions to be a form of private property guaranteed by the taxpayers not only for today, but tomorrow. That is, if the pension payouts are raised, they never can be cut. And if taxes are needed to be raised to continue the payouts, then so be it. As he wrote:

"n California (and some other states), the courts give constitutional protection not only to the amount of public employees’ pensions that has been earned by past service, but also to employees’ right to keep earning a pension based on rules that are at least as generous for as long as they stay employed. I argue that protecting pensions accrued based on past work is reasonable; protecting the current rules into the future is far less so.”

A proposal is one thing. But do such reforms stand a chance in a state where the unions hold so much clout?


First, Volokh rules out some fixes, such as local emergency reforms to resolve a fiscal crisis or looking to the U.S. Supreme Court for relief.

But here are the fixes Volokh considers possible:

1.  A flexible definition of benefits.  Volokh believes that pensions can be modified based on “actuarial advice” as provided in the legal case of International Association of Firefighters vs. City of San Diego in 1983. This would get around the current problem of pensions being considered inflexible and inviolate.

2. Short-Term Contracts.  Instead of a life-long, lease-like pension, Volokh proposes short-term employment contracts. “If pension terms are enshrined in memoranda of understanding … that expire at a certain time, it seems hard to argue that the employees have acquired any vested right to compensation, benefits, pensions, or anything else beyond the term provided.” This would be difficult to get by unions unless their power is reduced.

3. State Constitutional Amendment.  Volokh brings up San Jose Mayor Chuck Reed’s Pension Reform Act of 2014, which could be on the November ballot.

Volokh acknowledges that, even if passed, the reform would only apply to employees hired after passage.  The prospects for passage of such an amendment may partially hang on State Attorney General Kamela Harris’ ballot argument, which was called biased not only by conservatives, but even by the left-leaning editorial page of the Los Angeles Times. The courts will decide the initiative’s final wording. But the San Jose Mercury News wrote that Harris’ tactics may be a way to stall the initiative  so it can’t gain enough signatures to appear on the ballot this year.

4. Changing State Case Law By Stacking the State Supreme Court. How this would ever happen in these times of Democratic dominance in the state is a good question. Democrats backed by unions likely will win future elections for the post of governor, who appoints court justices, and the members of the state Senate, which confirms the justices.

However, Supreme Court justices also have to be confirmed by state voters. And in 1986, voters removed from the court three justices, including Chief Justice Rose Bird, for refusing to allow executions under the state death penalty. So justices that rule against pension reform might be vulnerable.

5. Privatization. Volokh writes that “firing state employees is constitutional and providing pensions and retirement plans for the contractors’ employees will be left to the private employers.” The problem, again, is whether union power would allow this.

6. Defined Contribution Plans. Volokh proposes switching from a defined (assured) benefit plan to a defined contribution plan.  The California Rule on pensions does not protect contributions by government employers, only the benefits.


Another trump card for Volokh, Reed and other reformers is that California’s pension crisis isn’t going away. The recent bankruptcies of the cities of Stockton, San Bernardino and Vallejo all were caused at least in part by an inability to meet hefty pension obligations.

Union power also may have peaked, as shown by the dissatisfaction even many progressives showed last year when union workers twice went on strike and shut down the Bay Area Rapid Transit system. As the U-T San Diego noted:

“Even in the strongly Democratic Bay Area, residents have very little sympathy for BART workers. In August, Sen. Mark DeSaulnier, D-Concord, said he was considering legislation that would deny transit workers the right to strike, which is the norm in most large U.S. metropolitan areas.

If pension costs rise even higher and threaten bankruptcy for more California cities, some of Volokh’s “fixes” could start popping up as potential solutions.

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.




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