FedSoc Blog

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On June 20, 2011, the Supreme Court announced its decision in American Electric Power Company v. Connecticut.  The question in this case was whether "the plaintiffs (several States, the city of New York, and three private land trusts) can maintain federal common law public nuisance claims against carbon-dioxide emitters (four private power companies and the federal Tennessee Valley Authority)."

In an opinion delivered by Justice Ginsburg, the Court held by a vote of 8-0 that "[t]he Clean Air Act and the Environmental Protection Agency action the Act authorizes . . . displace the claims the plaintiffs seek to pursue." Chief Justice Roberts and Justices Scalia, Kennedy, Breyer, and Kagan joined Justice Ginsburg’s opinion. Justice Alito filed an opinion concurring in part and concurring in the judgment, which Justice Thomas joined. Justice Sotomayor took no part in the consideration or decision of the case.

To discuss the case, we have Megan L. Brown, who is a partner at Wiley Rein LLP. Ms. Brown is on an amicus brief in support of the petitioners.

Click here to view this article on the source site »

The Washington Post reports that the United States is giving the leaders of the rebel forces in Libya full diplomatic recognition as the "legitimate governing authority for Libya." Hillary Clinton made the announcement today.

This decision allows the U.S. government to grant the rebels access to more than $30 billion in frozen U.S. assets in Libya. The recognition takes place following five months of the rebels' military conflict to topple Moammar Gaddafi, as opposition to the U.S. presence in the conflict has been ramping up in Congress.

Click here for the last FedSoc Blog post on Libya. Click here for a Practice Groups Podcast on "The President's Authority in Libya," with Prof. Saikrishna Prakash of the University of Virginia School of Law, David Rivkin of Baker & Hostetler, Prof. Peter Spiro of Temple University - Beasley School of Law, and Hon. Edwin Williamson of Sullivan & Cromwell. Hon. Ronald Cass moderates.

On July 12, Miguel Estrada of Gibson Dunn & Crutcher delivered the Annual Supreme Court Roundup of the Federalist Society's D.C. Lawyers Chapter at the Mayflower Hotel.

After an introduction by Douglas R. Cox of Gibson, Dunn & Crutcher, Mr. Estrada began his remarks by continuing the tradition of highlighting an "inexplicable, stupid, embarrassing, or otherwise incomprehensible act by a public figure." This year's winner was former New York Congressman Anthony Weiner (pictured here in full Mets gear), who resigned last month amidst a Twitter and Facebook sex scandal.

Mr. Estrada went on to summarize some statistics and to highlight several interesting cases from what he deemed to be, overall, a particularly "boring" Term, including Snyder v. Phelps, Brown v. Entertainment Merchants Assn., Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, American Electric Power Co. v. Connecticut, and Wal-Mart Stores, Inc. v. Dukes.

Click on the video above to listen to Mr. Estrada's remarks.

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On April 26, 2011, the Supreme Court announced its decision in United States v. Tohono O'odham Nation. The Tohono O'odham Nation (Nation) filed suit in Federal District Court against federal government officials who managed the Nation's tribal assets held in trust by the Federal Government. The Nation alleged various violations of fiduciary duty and requested equitable relief. The following day, the Nation filed a suit against the United States in the Court of Federal Claims (CFC). In the CFC suit, the Nation made nearly identical allegations, but requested money damages. 28 U.S.C. §1500 states that the CFC lacks jurisdiction "over an action 'for or in respect to' a claim that is also the subject of an action pending in another court." The question in this case was whether "a common factual basis like the one apparent in the Nation's suits suffices to bar [the CFC from having]  jurisdiction under §1500."

In an opinion delivered by Justice Kennedy, the Court held the following by a vote of 7-1: First, if two lawsuits are based on largely the same operative facts, then those two lawsuits are "for or in respect to" the same claim such that CFC jurisdiction is precluded, regardless of the relief sought in each suit. Second, the great degree of overlap between the two lawsuits at issue in this case precludes CFC jurisdiction.

Chief Justice Roberts and Justices Scalia, Thomas, and Alito joined Justice Kennedy's opinion. Justice Sotomayor filed an opinion concurring in the judgment, which Justice Breyer joined. Justice Ginsburg filed a dissenting opinion. Justice Kagan took no part in the consideration or decision of the case.

To discuss the case, we have Professor Gregory Sisk, who is the Pio Cardinal Laghi Distinguished Chair in Law at the University of St. Thomas School of Law in Minneapolis, Minnesota. Professor Sisk filed an amicus brief in support of neither party.

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AP reports that the Obama Administration has filed a brief supporting a lesbian federal employee's claim that she was improperly denied health insurance coverage for her same-sex spouse in California.

The brief states that the court should not dismiss the suit because the Federal Defense of Marriage Act (DOMA), which defines "marriage" as a union between a man and a woman and would deny the benefits to the spouse, is unconstitutional under the Equal Protection Clause of the 14th Amendment.

Click here to view the brief in opposition of a motion to dismiss, which argues:

The official legislative record makes plain that DOMA Section 3 [defining marriage as being between a man and a woman] was motivated in large part by animus toward gay and lesbian individuals and their intimate relationships, and Congress identified no other interest that is materially advanced by Section 3.

Because the law was motivated solely by animus toward this group, the brief asserts, it cannot meet the standard set out by the Supreme Court to be applied in these cases and thus violates equal protection.

The Administration previously concluded that it would not defend DOMA in court, but this is its first filing actually seeking to have a court strike down the law as unconstitutional.

For more on this topic, click here to listen to a Federalist Society Practice Groups podcast on "The Government's Duty to Defend the Law in Court," featuring Prof. John Baker of the Louisiana State University Law Center, Mr. Walter Dellinger of O'Melveny & Myers, and Dr. John Eastman of the Center for Constitutional Jurisprudence.

President Obama is seeking a stay of the execution of Humberto Leal Garcia, a Mexican national on death row in Texas for the rape and murder of a 16-year-old girl in 1994, arguing to the U.S. Supreme Court that Garcia's execution would violate international treaties and cause "irreparable harm" to U.S. foreign interests. The execution is set for this Thursday, July 7, reports The Guardian.

In a 30-page brief, the Administration asks the Supreme Court to put the execution on hold while Congress passes a law preventing states from putting to death Garcia and other nationals who were allegedly refused sufficient access to diplomatic representation while on trial for capital crimes.

President Obama is continuing the policy set out by President George W. Bush attempting to halt the execution of such foreign nationals in the U.S. In 2008, the U.S. Supreme Court ruled in Medellin v. Texas that President Bush could not force states to comply with the judgment of the ICJ ordering the release of Mexican nationals held in state courts for failure to provide access to diplomatic legal representation.

For more on the Court's decision in Medellin and how it might affect cases like that of Garcia, click here for a Federalist Society debate on the case among Hon. Edwin Williamson of Sullivan & Cromwell, Prof. David Sloss of Saint Louis University School of Law, former Texas Solicitor General Ted Cruz of Morgan Lewis & Bockius, and Prof. Nick Rosenkranz of Georgetown University Law Center. Click here for a SCOTUScast on the decision by Ted Cruz.

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On June 13, 2011, the Supreme Court announced its decision in Nevada Commission on Ethics v. Carrigan. Nevada passed a law that bars a legislator from both voting on a proposal and advocating its passage or failure when he has a conflict of interest. The question in this case was whether this law was unconstitutionally overbroad such that it violated the First Amendment rights of legislators.

In an opinion delivered by Justice Scalia, the Court held by a vote of 9-0 that the Nevada law was not unconstitutionally overbroad such that it violated the First Amendment rights of legislators. Chief Justice Roberts and Justices Kennedy, Thomas, Ginsburg, Breyer, Sotomayor, and Kagan joined Justice Scalia’s opinion. Justice Kennedy filed a concurring opinion. Justice Alito filed an opinion concurring in part and concurring in the judgment.

To discuss the case, we have Supreme Court advocate Erik S. Jaffe.

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The Washington Times reports that President Obama, speaking to the media last week for the first time after the House of Representatives voted down an authorization of U.S. military involvement in Libya, said that the legal and constitutional criticisms of his decisions in Libya were "noise" and that "(a) lot of this fuss is politics."

The President stated in the White House East Room news conference:

We have engaged in a limited operation to help a lot of people against one of the worst tyrants in the world, somebody who nobody should want to defend. And this suddenly becomes the cause celebre for some folks in Congress? Come on.

Members of both parties in Congress have criticized the President for going beyond the original support mission in Libya and for violating the 1973 War Powers Resolution by not seeking authorization from Congress in the military venture, which began over three months ago.

In the Senate, the Foreign Relations Committee has approved a resolution purporting to allow President Obama to continue the Libyan military mission for up to a year with a 14-5 vote. This, however, came after the House voted down a resolution offering support for the mission last week.

Click here to listen to a podcast from the Federalist Society's International & National Security Law Practice Group on "The President's Authority in Libya," featuring Prof. Saikrishna Prakash of the University of Virginia School of Law, Mr. David Rivkin of Baker & Hostetler, Prof. Peter J. Spiro of Temple University's Beasley School of Law, and Hon. Edwin D. Williamson of Sullivan & Cromwell. Hon. Ronald A. Cass of Cass & Associates moderates.

Listen to the audio here.

On June 9, 2011, the Supreme Court announced its decision in Microsoft Corp. v. i4i Limited Partnership. According to §282 of the Patent Act of 1952, "[a] patent shall be presumed valid" and "[t]he burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity." The question in this case is whether "§282 requires an invalidity defense to be proved by clear and convincing evidence."

In an opinion delivered by Justice Sotomayor, the Court held by a vote of 8-0 that §282 of the Patent Act does require an invalidity defense to be proved by clear and convincing evidence. Justices Scalia, Kennedy, Ginsburg, Breyer, Alito, and Kagan joined Justice Sotomayor’s opinion. Justice Breyer filed a concurring opinion, which Justices Scalia and Alito joined. Justice Thomas filed an opinion concurring in the judgment. Chief Justice Roberts took no part in the consideration or decision of the case.

To discuss the case, we have Professor Adam Mossoff, who is a professor at the George Mason University School of Law.

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In January 1995, the Boston Police Department received a call that a police officer had been shot and that four black suspects were fleeing the scene in a car. After a lengthy chase, the suspects jumped out of the car and ran in different directions. During the confusion, a group of police mistook Michael Cox, a black undercover officer, for one of the suspects, hit him on the head from behind, and began to beat him.

While the officers were attacking Cox, Officer Kenneth Conley spotted one of the suspects from his car and pursued him on foot. In the course of the chase, he ran directly by the beating of Cox. The officers hitting Cox eventually realized their mistake and dispersed without seeking help for their victim.

Later, during an investigation into Cox's beating, no officer would admit to participating in the incident. However, Conley said he was in the area but insisted that he did not see that the attack was occurring. The investigators did not believe his story, and Conley was convicted of perjury and obstruction of justice.

Inspired by this event, reports NPR, psychologists Chris Chabris from Union College and Daniel Simons from the University of Illinois decided that they would test inattentional blindness - that is, the tendency of human beings to tune out something that is right in front of them when they are focused on something else.

In their experiment, the test subject was told to run behind a jogger and count the number of times the jogger touched his hat. During the experiment, Chabris and Simons staged a fight among some students slightly to the side of the running path. When asked about the fight afterward, a surprisingly high number of subjects reported that they had not noticed it.

This experiment raises a number of questions about the potential effect of inattentional blindness on the legal process. How reliable is testimony from a witness, for instance, when that witness was focused on something else at the time of the alleged crime?

It would also seem to add a new tool to the arsenal of defense attorneys, who could use this study and others like it to discount the credibility of the ID of the defendant, or, as in the case of Officer Conley, to argue that the defendant could not have noticed something others might expect him to notice.

To test your own level of selective attention, click on the video above and see how you do.

Under a proposed bill in the U.S. Senate, anyone who uploads a cover of a copyrighted song to YouTube without permission could face up to five years in prison, reports Gizmodo. The bill would also mean jail time for people distributing these copyrighted performances online.

This is bad news for performers like Keenan Cahill, whose stirring performance of "Making Love Out of Nothing at All" is above.

The Washington Post reports today that the Obama Administration has responded to criticism and a lawsuit from a bipartisan group of lawmakers over its military operation in Libya with a 32-page report stating that, under the 1973 War Powers Resolution (WPR), such authorization is unnecessary.

The U.S. has been participating in the operation to oust Libyan leader Moammar Gaddafi from power for three months, surpassing the sixty-day deadline set under the WPR for the President to obtain congressional approval for military operations. The Republican House leadership and some Democrats have criticized the President for not obeying the WPR or adequately consulting with Congress about the operation. In a letter to President Obama on Tuesday, House Speaker John Boehner wrote:

(T)he ongoing, deeply divisive debate originated with a lack of genuine consultation prior to commencement of operations and has been further exacerbated by the lack of visibility and leadership from you and your administration.

The report issued today states that the President will not seek any extra funding for the operation in Libya and that "there has not been a significant operational impact on United States activities in Iraq and Afghanistan." Responding to arguments that the operation is illegal under the WPR because the President did not seek congressional operations, the report states that the operation does not constitute the kind of "hostilities" contemplated by the WPR.

For more on the President's authority in the Libyan operation, be sure to dial in next Wednesday, June 22, at 1 PM to a Federalist Society Teleforum Conference Call featuring David Rivkin of Baker & Hostetler and Prof. Ilya Somin of George Mason University School of Law discussing this topic. The number is 1-888-752-3232.

Also, click here to listen to a Practice Groups Podcast on the President's authority in Libya by Prof. Saikrishna Prakash of the University of Virginia School of Law, Mr. Rivkin, Prof. Peter Spiro of Temple University Beasley School of Law, and Edwin Williamson of Sullivan & Cromwell, with Ronald Cass of Cass & Associates moderating.

And click above to watch the video of an event co-hosted by the Fordham Student Chapter and the International & National Security Law Practice Group on "Domestic and Legal Issues Arising from American Intervention in Libya."

Listen to the audio here.

On May 26, 2011, the Supreme Court announced its decision in Chamber of Commerce of the United States v. Whiting, a case involving the interaction between an Arizona statute and federal immigration laws. The Legal Arizona Workers Act provides for the suspension and/or revocation of licenses held by Arizona employers who knowingly or intentionally employ unauthorized aliens. The statute also requires Arizona employers to use a federal electronic verification system to ensure that their workers are legally authorized. The question before the Court was "whether federal immigration law preempts those provisions of Arizona law."

In an opinion delivered by Chief Justice Roberts--but not joined in full by all members of the majority--the Court held by a vote of 5-3 that neither provision of the Arizona law was preempted by federal immigration law. Justices Scalia, Kennedy, and Alito joined the Chief Justice's opinion in full, while Justice Thomas only joined the opinion in part and concurred in the judgment. Justice Breyer filed a dissenting opinion, which Justice Ginsburg joined. Justice Sotomayor filed a separate dissent. Justice Kagan took no part in the consideration or decision of the case.

To discuss the case, we have Linda T. Coberly, who is a partner at Winston & Strawn LLP. Ms. Coberly was on an amicus brief in support of the petitioner.

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On May 23, the Supreme Court announced its decision in General Dynamics Corp. v. United States. The question in this case was the following: What is the proper remedy when, in order to protect state secrets, a court dismisses a government contractor’s facially valid affirmative defense to the government's allegations of contractual breach?

In an opinion delivered by Justice Scalia for a unanimous Court, the Court held that in the particular circumstances of this case - where the protection of state secrets precluded adjudication of the parties' claims and defenses - the appropriate remedy was to leave the parties in the position they were in on the day that they filed suit.

To discuss the case, we have Marcia G. Madsen, who is a partner at Mayer Brown LLP. Mayer Brown filed an amicus brief in support of the petitioner.

Click here to view this article on the source site »

David A. Fahrenthold at the Washington Post reports today that the U.S. House of Representatives has passed a resolution critizing President Obama for not providing to Congress "a compelling rationale" for military action in Libya. However, it did not demand a withdrawal of troops, rejecting a competing resolution from Rep. Dennis Kucinich that demanded such a withdrawal.

The resolution would give Obama two weeks to persuade Congress that the military campaign is justified. Click here for the Washington Times story.

For more on the President's constitutional authority to initiate and maintain military action in Libya, click here to listen to a podcast from the Federalist Society's International & National Security Law Practice Group on "The President's Authority in Libya." The podcast features Prof. Saikrishna Prakash of the University of Virginia School of Law, David Rivkin of Baker & Hostetler, Prof. Peter Spiro of Temple University's Beasley School of Law, and Edwin Williamson of Sullivan & Cromwell. Ronald Cass of Cass & Associates moderates.