FedSoc Blog

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

Affirmative Action Foe Wins California Court Fight to Obtain Bar Exam Ethnic Data


by Publius
Posted December 19, 2013, 5:46 PM

The Associate Press reports:

In a bitter fight over the effects of affirmative action, the California Supreme Court ruled Thursday that law school data on race, attendance and grades should be available to the public.

The unanimous decision represents a legal victory for a law professor seeking to test his theory that minority students are actually harmed by preferential admissions policies.

University of California, Los Angeles law professor Richard Sander created a firestorm when he published his "mismatch theory" in the Stanford Law Review in 2004.

Critics swiftly attacked his conclusions, saying Sander understated the positive effects of affirmative action and based his thinking on inadequate statistics.

To further his research, Sander sought the data with a public records request in 2008. The state bar association denied the request, prompting the lawsuit.

Sander said Thursday that the state bar database is "unparalleled" to other demographic sources he uses in his research.

"Having access to this large database is just so enormously valuable," Sander said. "This is a big breakthrough."

State bar officials declined comment Thursday.

The state Supreme Court ordered the case returned to a trial judge to determine whether the requested information can be released to Sander without violating applicants' privacy.

In its ruling, the court insisted that the identities of test takers must be protected from disclosure.

Sander and his lawyers said Thursday they are willing to pay the expenses the state bar may incur in redacting names and otherwise protecting the identities of exam applicants in exchange for access to the data.

State bar authorities had argued that releasing the data would violate its promise of confidentiality to the 15,000 or so applicants who take the test annually.

State bar attorneys argued that the state bar is part of the judicial branch and not subject to the same open-records laws as other public agencies.

Supreme Court Chief Justice Tani Cantil-Sakauye, however, stated that judicial branch records, like those of other public agencies, are open so long as "there is a legitimate public interest" and no other factor outweighs disclosure.

"The public does have a legitimate interest in the activities of the state bar in administering the bar exam and the admissions process," the chief justice wrote for the unanimous court. "In particular, it seems beyond dispute that the public has a legitimate interest in whether different groups of applicants, based on race, sex or ethnicity, perform differently on the bar examination and whether any disparities in performance are the result of the admissions process or of other factors."

Sander wants information on race, attendance and grades at law schools, test scores and the rate at which exam takers passed the test. . . .

In October 2012, Sander spoke about the mismatch theory in a FedSoc Civil Rights Practice Group podcast. You can listen to it here.

Detroit Bankruptcy Judge Allows Appeal of Eligibility, Pension Rulings to Sixth Circuit


by Publius
Posted December 16, 2013, 2:48 PM

According to the Detroit News:

A bankruptcy judge Monday allowed creditors to appeal his recent eligibility and pension rulings directly to the U.S. 6th Circuit Court of Appeals.

The decision by U.S. Bankruptcy Judge Steven Rhodes followed several requests from unions, pension funds and retiree groups, who are fighting the city’s eligibility for Chapter 9 bankruptcy relief and the judge’s ruling that pensions can be cut in bankruptcy court.

Creditors pushed for an expedited appeal, arguing the bankruptcy case has implications on the treatment of vested pensions by bankrupt municipalities nationwide. Rhodes did not immediately rule on the expedited request.

“This is an issue of national importance,” said Sharon Levine, lawyer for the city’s largest union, the American Federation of State, County and Municipal Employees.

The move could slow Emergency Manager Kevyn Orr’s attempts to strike a deal among creditors to pare $18 billion in debt, said John Pottow, a University of Michigan bankruptcy professor.

The city’s bankruptcy teams wanted all appeals of Detroit’s bankruptcy eligibility put on hold until after a debt-cutting plan is approved by Rhodes. . . .

In October 2013, the Federalist Society hosted a panel on "Municipal Bankruptcy and Pension Reform: A Way Out?" It featured:

  •     Prof Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School
  •     Prof. David A. Skeel, S. Samuel Arsht Professor of Corporate Law, University of Pennsylvania Law School
  •     Moderator: Mr. Erik S. Jaffe, Sole Practitioner, Erik S. Jaffe, PC

You can watch a video of the event here.

FedSoc Practice Groups Podcast: Drone Delivery Service


by Publius
Posted December 11, 2013, 5:39 PM

On December 1, 2013, Amazon announced that it might make deliveries to homes and businesses in the future using unmanned aerial drones. As the domestic use of drones rises, legal issues will arise as well over who controls airspace and who has the right to regulate the use of such aircraft. Privacy issues will also be implicated. Professor Gregory S. McNeal, associate professor at Pepperdine University School of Law, discussed these issues with a live Teleforum audience on December 5. You can listen to a podcast of the call here.

Gallup: U.S. Death Penalty Support Lowest in More Than 40 Years


by Publius
Posted October 30, 2013, 11:28 AM

According to Gallup Politics:

Sixty percent of Americans say they favor the death penalty for convicted murderers, the lowest level of support Gallup has measured since November 1972, when 57% were in favor. Death penalty support peaked at 80% in 1994, but it has gradually declined since then.

Gallup first asked Americans their views on the death penalty using this question in 1936, and has updated it periodically since then, including annual updates since 1999.

Americans have typically favored the death penalty; in fact, support has exceeded opposition in all but one survey, conducted in May 1966, during an era marked by philosophical and legal challenges to the death penalty from the mid-1950s through the early 1970s. Americans' support for the death penalty waned during that time. The culmination of that era was the Supreme Court's 1972 Furman v. Georgia decision, which invalidated all state death penalty statutes on technical grounds but stopped short of declaring the practice itself unconstitutional. Four years later, the court ruled that several newly written death penalty laws were constitutional, and executions resumed in the U.S. shortly thereafter.

From then until the mid-'90s, death penalty support climbed, reaching 80% in 1994, a year in which Americans consistently named crime as the most important problem facing the United States.

The current era of lower support may be tied to death penalty moratoriums in several states beginning around 2000 after several death-row inmates were later proven innocent of the crimes of which they were convicted. More recently, since 2006, six states have repealed death penalty laws outright, including Maryland this year. . . .

Fifty-two percent of Americans believe the death penalty is applied fairly in the United States -- a smaller figure than the 60% who favor the death penalty. Forty percent believe the death penalty is applied unfairly. Gallup first asked this question in 2000, when the Illinois moratorium on the death penalty made headlines. At that time, 51% said the death penalty was applied fairly, which remains the low point in the 14-year trend. In 2004, a high of 61% said the death penalty was applied fairly. . . .

In September 2011, Cassandra Stubbs of the ACLU Capital Punishment Project and Professor William Otis of Georgetown Law Center took part in a debate on the death penalty.  You can listen to a recording of the Criminal Law & Procedure Practice Group Podcast here.

John Yoo and Sai Prakash Debate the President’s Authority to Intervene in Syria


by Publius
Posted September 04, 2013, 6:52 PM

On August 29, 2013, given the debate over President Obama’s right to militarily intervene in Syria without Congress’s authorization, the Federalist society held a special Teleforum conference call in which our experts debated the issue.  Speaking were John Yoo--Emanuel S. Heller Professor of Law at University of California, Berkeley School of Law--and Sai Prakash, James Monroe Distinguished Professor of Law and Horace W. Goldsmith Research Professor at the University of Virginia School of Law. Dean Reuter, Vice President & Director of Practice Groups at the Federalist Society, was the moderator. You can listen to a recording of the call here.

Yoo began by claiming it is a misinterpretation of the Constitution and would reject consistent practice in American history to hold that the president needs congressional approval to use force abroad. He said that this is evident:

not just a matter of history but becomes clear, but it’s clear in the constitutional text as well as in the different a different structures in the Constitution, and even in the legislative history of the Constitution. First, the consistent interpretation given by the branches of government has been that the president can use force abroad, and that the major check by Congress is not the Declare War Clause but Congress's powers over funding the armed forces: If Congress want to to stop a war all it has to do is not build the president the kind of military he needs in the first place to wage that war, or to cut off the funds for the fighting or never vote for the funds in the first place once the hostilities have started. On the presidential side, the president is the commander in chief and holds the executive power, and I think the tradition in our history and in the history before the Constitution was that the executive power did include the power to use force abroad, which is why presidents have used force abroad, some 130 times. I think by last count there have been only five declarations of war.

Yoo argued that the most important provision in which to understand the Declare War Clause is the rest of the constitutional text:

If you look at the other place where the Constitution talks about war--Article One, Section Ten--that provision bans states from engaging in war.  It says, “No State shall . . . engage in any War, unless it shall be actually invaded by Enemies, or the Danger of Invasion be so imminent as not to admit of a Delay, until the Legislature of the United States can be consulted.” That is exactly the way that people who support the Declare War Clause theory think that war powers works between the president and congress. . . . Yet why would the Framers not use that same exact language when it came to the president? Why didn’t they just copy this provision and insert the phrase “no president shall” for "no state shall'?

As the explanation for this, Yoo pointed to British history and said that if you look at the “fights between the executives and the legislatures, the phrase ‘declare war’ never had this meaning. It had more to do with setting the legal status of hostilities. . . . The check on the executive was always the power of the purse.”

According to Yoo, what has really happened over the years is that Congress has attempted to avoid responsibility: “They have granted the president a huge authority for offensive actions. Our military is not designed for homeland defense.  It is designed for offensive operations in other people’s countries, and at the same time Congress doesn’t create limits on how that military can be used. So they live in an ideal world where the president takes the initiative, and if it turns out badly they can say ‘we never approved it in the first place.’”

Speaking next, Prakash began by praising Yoo for maintaining his same position regardless of presidential administration and whether or not he supported any particular military action. Prakash also said that Yoo is “to be praised for bringing us back to the Constitution.  War powers scholarship before John tended to focus on what the Framers said about the Constitution rather than the Declare War Clause.”

Prakash said that he wholeheartedly agreed that the purse can be used as a check. It could even be an ex ante check: appropriating military funds with various provisos as to how it may be used. Where he differed with Yoo is on the claim that it is the only check. Prakash said he believes the Constitution adopts "a kind of belts and suspenders approach." He noted that Yoo himself agrees that the president can’t unilaterally declare war under the Constitution, whatever one means by “declare war.” The question is: what does that expression mean? Prakash said that according to Yoo’s scholarship, to declare war means to invoke the laws of war. Prakash responded that even at the time of the founding, the Framers didn’t think that formal declarations of war were all that useful. They had a broader sense of what it is to declare war. In the 18th century, he explained, it was widely thought that any decision to go to war was a declaration of war. When a nation had invaded another it had ipso facto declared war. A British Prime Minister said in Parliament, “The most common declaration of war in our age comes from the mouth of cannons.” In the American system, however, authorizing war must be more formalized since Congress acts only via writing. Prakash conceded, “I do understand that practice has varied from this to some extent, certainly more so in modern times,” but he claimed that some of those 130 actions Yoo mentioned were actually authorized by Congress. It doesn’t matter if Congress used the word “war."

On the Inadvertent Implications of the War Powers Resolution


by Publius
Posted September 03, 2013, 9:15 AM

In 2012, Michael A. Newton, a professor at Vanderbilt Law School and a member of the executive board of FedSoc's International & National Security Law Practice Group, published an article on the president's power to use military force. Titled "Inadvertent Implications of the War Powers Resolution," it is especially timely given the debate over whether the U.S. should intervene in Syria, and whether the president has the authority to do so without Congress' permission.  According to the article's abstract:

The constitutional infirmity of the War Powers Resolution has been uniformly demonstrated by more than four decades of bipartisan experience. The Resolution manifestly fails to eliminate the healthy interbranch tensions that are in our constitutional DNA with respect to military deployments. In its context, the override of President Nixon’s veto represented little more than a stark act of congressional opportunism. The President’s veto message was prescient in warning that the Resolution is “dangerous to the best interests of our Nation.” This article suggests that the act represents an attempted abdication of the enumerated obligation of Congress to oversee military operations via the appropriations power. It describes reasons why our republic would be well served by clear-eyed reassessment of the War Powers Resolution. It spawned three serious defects: 1) it displaced good faith dialogue between the co-equal branches with after the fact litigation, 2) it highlights American political will as the weakest strand of otherwise formidable military capacity, and 3) it creates a perverse inventive to reverse engineer military operations based on statutory language in ways that undermine strategic objectives. American lives and interests are ill-served by these inadvertent implications.

You can find a PDF of the article here.

On the same subject, FedSoc's International & National Security Law and Federalism & Separation of Powers Practice Groups produced a podcast on "Syria and the President’s Authority to Intervene" on August 29, 2013. It featured:

  • Prof. Saikrishna B. Prakash, James Monroe Distinguished Professor of Law and Horace W. Goldsmith Research Professor, University of Virginia School of Law
  • Prof. John Choon Yoo,  Emanuel S. Heller Professor of Law, University of California, Berkeley School of Law
  • Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

You can listen to the podcast here.

Religious Objections to Contraception Mandate Multiply


by Publius
Posted August 06, 2013, 8:23 AM

The National Law Journal reports:

Religion-based challenges to the new health care law likely will bring the controversial reforms back to the nation's high court before the end of the coming term.

Although a recent split among the circuits increased that likelihood substantially, lawyers in one of the two divided circuits chose Wednesday to seek en banc review in the U.S. Court of Appeals for the Third Circuit instead of a swifter trip from the panel decision to the U.S. Supreme Court.

However, other splits may develop as cases in the Sixth and Seventh circuits are expected to be decided soon, said S. Kyle Duncan, general counsel of The Becket Fund for Religious Liberty.

"Those panels seemed to be leaning heavily in one direction or another," Duncan said. "We may see decisions by the end of August deepening the split."

Duncan won a ruling in late June from the en banc 10th Circuit in Hobby Lobby v. Sebelius. The owners of Hobby Lobby, a craft store chain, and Mardel, a Christian bookstore chain, challenged regulations implementing the Patient Protection and Affordable Care Act that require them to provide certain contraceptive coverage in their employer-sponsored health care plans. They contend the coverage includes drugs and devices that they believe are abortifacients, the use of which is contrary to their faith.

The en banc court on June 27 held that the two for-profit companies are entitled to bring their claims under the Religious Freedom Restoration Act and the First Amendment free exercise clause. It said the companies had established a likelihood of success that their rights under the statute were substantially burdened by the contraceptive-coverage requirement, and had established an irreparable harm. The court sent the case back to the district court to determine whether two of the remaining factors for granting a preliminary injunction had been met.

The district court held a hearing and entered an injunction. At that point, the government asked for a stay of the proceedings, which was granted until Oct. 1 in order for the government to consider a petition to the Supreme Court.

Shortly afterward, a panel of the Third Circuit took the opposite position in Conestoga Wood Specialties Corp. v. Sebelius.

Conestoga Wood is owned by the Hahn family, who hold 100 percent of the voting shares. It is a Pennsylvania for-profit corporation that manufactures wood cabinets and has 950 employees. The Hahns practice the Mennonite religion and claimed that the contraceptive coverage requirement violated the Religious Freedom Restoration Act and the free exercise clause. They objected specifically to the emergency contraception drug known as Plan B and the week-after pill known as Ella.

The panel, voting 2-1, held that a for-profit, secular corporation cannot exercise religion either directly, as the Hahns argued, under the Supreme Court decision in Citizens United v. FEC; or under a so-called pass-through method, by which the corporation can assert the free exercise claims of its owners.

"Even if we were to disregard the lack of historical recognition of the right, we simply cannot understand how a for-profit, secular corporation—apart from its owners—can exercise religion," said the majority.

Conestoga Wood's en banc petition argues, "The panel majority invented a rule that makes religious families incapable of exercising religion in a business corporation. The decision does not merely prevent the Hahns' claim from succeeding; it blocks a family business company from being able to exercise religion at all. This eviscerates the rights of devout business owners of all kinds, from religious families running companies like Conestoga, to kosher butchers and Bible publishers. The panel judicially amends the Constitution by adding a novel exception to the Free Exercise Clause."

Conestoga Wood is represented by Charles Proctor of Proctor, Lindsay & Dixon, in Chadds Ford, Pa. "When the Hahns filed incorporation papers, Obama­care was nowhere on the horizon. The government says they are separate from the corporation but any profits and losses pass through right to the Hahns."

Proctor noted that in two Supreme Court cases the justices upheld the right of two religious corporations to practice animal sacrifices and to use hallucinogenic tea. "Those corporations could exercise their religious rights in odd ways and the Supreme Court upheld it, no problem at all," he said. "Here, we're talking about something not as extreme, but simply because they manufacture a secular product they're denied that relief."

Another case, Liberty University v. Lew, is definitely headed to the Supreme Court after a remand by the justices in June 2012.

A panel of the Fourth Circuit recently rejected the university's broad-based attack on the law's requirement that employers with 50 or more full-time employees offer health insurance. Liberty also claimed the law and implementing regulations violated its rights under the First and Fifth Amendments and the Religious Freedom Restoration Act. The panel rejected the constitutional and statutory attacks on the law and declined to rule on the claims against the regulations

This court of appeals has now decided that Congress can force employers to buy an unwanted product," said Mathew Staver, chairman of Liberty Counsel, representing the university. "As Congress cannot force individuals to buy an unwanted product, neither can it force employers to do so. I look forward to having this matter before the Supreme Court."

There are approximately 64 challenges to the contraceptive coverage requirement pending. Of those, 36 were filed by for-profit companies. The remaining number have been brought by religiously affiliated nonprofit organizations.

The Becket Fund's Duncan is handling eight cases, only one of which is for a for-profit corporation: Hobby Lobby. The challenges by nonprofit organizations generally have been stayed or dismissed without prejudice while the courts awaited the Obama administration's final rule on accommodations for nonprofit entities with religious objections.

That rule came out at the end of June, noted Duncan, who added, "We should expect activity in the nonprofit cases fairly soon."

In April 2013, the Federalist Society's Religious Liberties Practice Group produced a "HHS 'Contraceptive' Mandate - Litigation Update" podcast. According to its description:

The controversy over the HHS contraceptive mandate has generated over 50 lawsuits, on behalf of more than 160 different plaintiffs.  Most of the litigation on behalf of non-profit entities (universities, hospitals, etc.) has been on hold, awaiting the administration's planned issuance of a new final rule with an "accommodation" for non-profits with religious objections.  Litigation on behalf of for-profit businesses and their owners, however, is moving through the courts of appeals, with several courts hearing arguments in May and June.  To date, the for-profit businesses have won 17 preliminary injunctions, and been denied relief in 6 cases.

Mark Rienzi, who is Senior Counsel at the Becket Fund for Religious Liberty and an associate professor at the Catholic University of America's Columbus School of Law, discussed the current status of the cases during this teleforum.  Our Religious Liberties Practice Group Chairman, William L. Saunders, introduced Prof. Rienzi and provided his commentary to Professor Rienzi’s remarks.


  • Prof. Mark L. Rienzi, The Catholic University of America Columbus School of Law and Senior Counsel, Becket Fund for Religious Liberty
  • Introduction and Commentary: Mr. William L. “Bill” Saunders, Senior Vice President and Senior Counsel, Americans United for Life and Chairman, Religious Liberties Practice Group
  • Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

You can listen to the podcast here.

Arbitration Backed as High Court Rules for American Express in Class Action Case


by Publius
Posted June 20, 2013, 11:17 AM

According to Bloomberg News:

The U.S. Supreme Court reinforced companies’ power to funnel legal disputes into arbitration, ruling in favor of American Express Co. (AXP) in an antitrust clash with retailers over the credit cards they must accept.

The 5-3 ruling is a victory for American Express in its bid to hold merchants to agreements they signed promising to pursue any disputes individually before an arbitrator. A federal appeals court had refused to enforce the arbitration accord, saying its bar on class actions would make it infeasible for the merchants to press their claims.

Writing for the majority, Justice Antonin Scalia rejected that reasoning, saying courts can’t invalidate a class-action waiver on the grounds that individual arbitration would be too expensive to pursue.

“Such a preliminary litigating hurdle would undoubtedly destroy the prospect of speedy resolution that arbitration in general and bilateral arbitration in particular was meant to secure,” Scalia wrote.

Companies are increasingly turning to arbitration accords to limit lawsuits by customers, employees and fellow businesses. Advocates of arbitration say it saves litigation expenses and produces quicker decisions. The high court has repeatedly backed the use of arbitration agreements in recent years.

In dissent, Justice Elena Kagan said the ruling risked turning arbitration into “a mechanism easily made to block the vindication of meritorious federal claims and insulate wrongdoers from liability.”

Justices Ruth Bader Ginsburg and Stephen Breyer joined Kagan in dissent. Justice Sonia Sotomayor, who was involved with the case as an appellate judge, didn’t take part in the Supreme Court’s decision.

Today’s decision extends a 2011 Supreme Court ruling that said companies can use arbitration accords to block employees and consumers from pressing claims as a group.

American Express is fighting a series of lawsuits filed starting in 2003 by restaurants and other merchants in California and New York. The lead plaintiff at the Supreme Court was Italian Colors Restaurant of Oakland, California.

The merchants say they should be able to accept American Express charge cards, which require payment of the entire balance each month, without having to accept the company’s newer credit cards, which don’t require full payment. The merchants say the newer cards aren’t used by the high-end customers preferred by stores and consequently aren’t worth the high fees imposed on stores by American Express.

In May 2013, the Federalist Society's Litigation Practice Group produced a podcast on the case, American Express Co. v. Italian Colors Restaurant, with Thomas G. Hungar, partner at Gibson Dunn & Crutcher LLP. You can listen to it here.

Supreme Court Strikes Down Arizona Voting Law


by Publius
Posted June 17, 2013, 4:48 PM

The Wall Street Journal reports:

Arizona violated the federal "Motor Voter" law when it added a proof-of-citizenship requirement to standard voter-registration forms intended for use nationwide, the Supreme Court held Monday.

The ruling comes a year after the Supreme Court struck down most of another Arizona law designed to punish illegal immigrants seeking work.

Writing for the court, Justice Antonin Scalia said federal law required states to "accept and use" the streamlined form provided by the 1993 National Voter Registration Act, as the Motor Voter law is formally named.

Although federal law requires registrants to certify, under penalty of perjury, that they are U.S. citizens, it doesn't require documentary evidence. Arizona argued that its 2004 law mandating that registrants supply concrete proof of citizenship, such as a birth certificate or passport, complemented the federal requirement rather than interfering with it.

By a 7-2 vote, the Supreme Court disagreed. The Motor Voter law, which was intended to streamline voter registration, didn't authorize states to unilaterally add requirements to the standardized national form, Justice Scalia wrote.

Voter-registration groups had argued that the proof-of-citizenship requirements interfered with registration drives and other efforts to sign people up to vote.

States are still free to use their own voter-registration forms in addition to the federal form, the court said, and Arizona can require registrants to supply proof of citizenship when using the state form. Moreover, Arizona is free to cross-check information registrants supply on the federal form to ensure its accuracy, the court said.

In addition, Justice Scalia added, Arizona can ask the federal Election Assistance Commission to include state-specific requirements to the federal form.

Chief Justice John Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined all or part of Justice Scalia's opinion.

"The court has reaffirmed the essential American right to register to vote for federal election without the burdens of state voter-suppression measures," said Barbara Arnwine, president of the Lawyers' Committee for Civil Rights, one of the organizations representing the challengers to the Arizona law.

Justices Clarence Thomas and Samuel Alito dissented.

Justice Alito wrote that the decision "brushes aside the constitutional authority of the states and produces truly strange results." He said it was odd that voters' ability to register in Arizona could depend on whether they chose the federal form or a state form requiring proof of citizenship. "I find it very hard to believe that this is what Congress had in mind," he wrote. . . .

In April 2013, the Federalist Society's Free Speech & Election Law Practice Group producted a podcast on the case with Erik S. Jaffe, an appellate attorney and Chairman of the practice group. You can listen to it here.




Supreme Court Unanimously Rules Human Genes Aren’t Patentable


by Publius
Posted June 13, 2013, 11:04 AM

The Wall Street Journal reports:

The Supreme Court unanimously ruled Thursday that human genes isolated from the body can't be patented, a victory for doctors and patients who argued that such patents interfere with scientific research and the practice of medicine.

The court was handing down one of its most significant rulings in the age of molecular medicine, deciding who may own the fundamental building blocks of life.

The case involved Myriad Genetics Inc., which holds patents related to two genes, known as BRCA1 and BRCA2, that can indicate whether a woman has a heightened risk of developing breast cancer or ovarian cancer.

Justice Clarence Thomas, writing for the court, said the genes Myriad isolated are products of nature, which aren't eligible for patents.

"Myriad did not create anything," Justice Thomas wrote in an 18-page opinion. "To be sure, it found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention."

Even if a discovery is brilliant or groundbreaking, that doesn't necessarily mean it's patentable, the court said.

However, the ruling wasn't a complete loss for Myriad. The court said that DNA molecules synthesized in a laboratory were eligible for patent protection. Myriad's shares soared after the court's ruling.

The court adopted the position advanced by the Obama administration, which argued that isolated forms of naturally occurring DNA weren't patentable, but artificial DNA molecules were.

Myriad also has patent claims on artificial genes, known as cDNA.

The high court's ruling was a win for a coalition of cancer patients, medical groups and geneticists who filed a lawsuit in 2009 challenging Myriad's patents. Thanks to those patents, the Salt Lake City company has been the exclusive U.S. commercial provider of genetic tests for breast cancer and ovarian cancer.

"Today, the court struck down a major barrier to patient care and medical innovation," said Sandra Park of the American Civil Liberties Union, which represented the groups challenging the patents. "Because of this ruling, patients will have greater access to genetic testing and scientists can engage in research on these genes without fear of being sued."

Myriad didn't immediately respond to a request for comment.

The challengers argued the patents have allowed Myriad to dictate the type and terms of genetic screening available for the diseases, while also dissuading research by other laboratories.

Humans have roughly 25,000 genes, which are DNA segments that represent basic units of heredity.

Myriad said its patents were the result of significant financial investments that allowed the company to make breakthroughs in diagnosing a woman's hereditary cancer risk. The company and its backers, including trade groups for the pharmaceutical and biotech industries, warned that disallowing patents like Myriad's could deter financial investments for future medical innovations.

But many companies in the medical industry took a more sanguine view of the case, saying an end to gene patents could open up new opportunities to develop diagnostic services, including tests that analyze large numbers of genes at once.

The Supreme Court's ruling largely overturned a divided appeals court opinion that broadly allowed gene-related patents. Lower court judges noted that the U.S. Patent and Trademark Office had been granting patents on DNA sequences for 30 years.

Justice Thomas said deference to the Patent Office wasn't warranted. Concerns about industry reliance on past Patent Office practices "are better directed to Congress," he said.

At arguments in April, Supreme Court justices were skeptical that human DNA extracted from the body could be patented like a mechanical invention. The debate highlighted how some discoveries may not be patentable, even if they unlock important medical mysteries.

"Patent law is filled with uneasy compromises," Justice Stephen Breyer said during the arguments. "On the one hand, we do want people to invent; on the other hand, we're very worried about them tying up some kind of whatever it is, particularly a thing that itself could be used for further advance."

The court in recent years has sought to constrict the scope of patent protections, concerned that patents were being issued too easily and so broadly as to squelch competition and impede innovation. Justice Elena Kagan at one point alluded to such concerns, describing the Patent and Trademark Office as "patent-happy."

The arguments featured a battle of analogies.

"A baseball bat doesn't exist until it's isolated from a tree. But that's still the product of human invention to decide where to begin the bat and where to end the bat," Myriad lawyer Gregory Castanias told the court.

Chief Justice John Roberts, who compared the gene-isolating technique to simply "snipping" one element from a longer strand, disagreed.

"The baseball bat is quite different," he said. "You don't look at a tree and say, well, I've cut the branch here and cut it here and all of a sudden I've got a baseball bat. You have to invent it."

In May 2013, the Federalist Society's Intellectual Property Practice Group produced a post-argument podcast in which Gregory Dolin, associate professor and co-director, Center for Medicine and Law at theUniversity of Baltimore School of Law, spoke about the case.  You can listen to it here.

FedSoc Practice Groups Podcast: Carrie Severino on the DOMA Oral Arguments


by Publius
Posted March 28, 2013, 7:34 AM

On March 27, the Supreme Court heard oral arguments in Windsor v. U.S., the challenge to the constitutionality of the federal Defense of Marriage Act (DOMA), signed into law by President Bill Clinton in 1996, and which bars the federal government from recognizing the validity of, or extending attendant benefits to, any marriage conferred by any of the states other than those consisting of only one man and one woman. The Court considered whether DOMA violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are recognized to be married under the laws of their state, whether the Executive Branch’s assertion that DOMA is unconstitutional deprives the Court of jurisdiction to decide this case, whether the Bipartisan Legal Advisory Group of the United States House of Representatives has standing in this case to defend DOMA. Carrie Severino of Judicial Crisis Network attended the oral arguments and then offered her analysis of the arguments, the merits, and the likely outcome of the case in a FedSoc podcast available here.


  • Ms. Carrie Severino, Chief Counsel and Policy Director, Judicial Crisis Network
  • Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society


Obama as Targeteer-in-Chief?


by Justin Shubow
Posted June 05, 2012, 10:08 AM

At Forbes, Pepperdine Law professor Greg McNeal comments extensively on President Obama's allegedly unprecedented personal involvement in targeting decisions:

President Obama is personally involved in vetting targets and approving strikes, according to a recent article in The New York Times entitled “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will.”  The piece has received a substantial amount of attention with expert commentators such as Ben Wittes describing it as “rich and detailed” and Ken Anderson writing that it is “the most detailed insider account of how the administration has gradually evolved a process for vetting targets.

I think the article amounts to a largely self-serving campaign piece, which is to be expected when the piece is sourced to interviews with President Obama’s “current and former advisers.”  For those not familiar with the targeted killing process, the article may seem to be filled with rich details that suggest that President Obama, the “liberal law professor” who “approves lethal action without hand-wringing” has taken on unprecedented authority and responsibility.  I’m not convinced that his actions are remarkable or unprecedented, let’s unpack what we learn from this story.

The times writes Obama’s “current and former advisers described Mr. Obama’s evolution since taking on the role, without precedent in presidential history, of personally overseeing the shadow war with Al Qaeda.”  I’m sure those advisers are very impressed with the President and their role in supporting him, but he’s hardly the first President to approve targeting decisions, and he’s not the first President to approve targeting decisions against Al Qaeda.

When a botched bombing operation presents the risk of strategic consequences, Presidents have frequently relied on strict rules of engagement and high level approvals of specific targets.  Most students of history are familiar with the tight controls over both target selection and nomination that were implemented during the Vietnam War.  (A great history of the process is available in this School of Advanced Airpower Studies thesis).  Even during Vietnam, targets were selected in Washington by a small team on the joint staff, and approved only at the presidential level.  Thus, contrary to the Times’ assertions, there are some precedents for outsized influence by the Commander in Chief in the targeting process — a fact that was true of Johnson and was also true of President Clinton. . . .

The Times piece tries to paint President Obama as the first President to take moral responsibility for the actions of the military he commands.  Obama, we learn from his aides is a student of writings on war by Augustine and Thomas Aquinas, he believes that he should take moral responsibility for such actions. And he knows that bad strikes can tarnish America’s image and derail diplomacy.”  Moreover, “[w]hen a rare opportunity for a drone strike of a top terrorist arises – but his family is with him – it is the president who has reserved to himself the final calculation.”  This would be an unprecedented act of political leadership if it weren’t for the fact that there is some precedent for it that predates President Obama.

As I point out in this book chapter, since at least September of 2008 (e.g. during George W. Bush) the Rules of Engagement in Afghanistan required the President or Secretary of Defense to sign off on any pre-planned strike (e.g. targeted killing) where even one civilian casualty was expected.

For a more detailed examination of American policy on targeted killings, see Professor McNeal's article "The U.S. Practice of Collateral Damage Estimation and Mitigation."  Also, in January 2011, FedSoc's International & National Security Law Practice Group aired a podcast on "Predator Drones and Targeted Killings."  It featured Michael W. Lewis, Ben Wizner, and Dean A. Reuter. You can listen to it here.

New Podcast of Richard Brookhiser on James Madison


by Publius
Posted May 11, 2012, 8:03 AM

Listen to the audio here.

Richard Brookhiser's new book, James Madison, examines the life of America's fourth president, including his role in advising Thomas Jefferson, his relationships with various Founding Fathers, including George Washington, John Adams, Thomas Jefferson, and Alexander Hamilton.  In this Federalist Society Practice Groups podcast, Brookhiser discusses his book with James A. Haynes, a member of FedSoc's Professional Responsibility & Legal Education Practice Group Executive Committee.

SCOTUS Refuses to Hear NYC Rent Control Case


by Justin Shubow
Posted April 23, 2012, 11:34 AM

This morning the Supreme Court rejected a case regarding rent control in New York City.  According to the New York Observer:

Today will be a day of rejoicing—time to break out the Andre—for residents with rent control.

The Supreme Court has declined to hear the challenge to rent control brought by former federal prosecutor James D. Harmon Jr., the owner of a five-story townhouse on West 76th Street.

Mr. Harmon, who grew up in the brownstone and now lives there with his wife Jeanne, inherited the building and its three rent-controlled tenants from his grandfather. Mr. Harmon’s three rent-controlled tenants each pay around $1,000 a month for one-bedroom apartments, about 59 percent below market rate, according to court documents. Three other tenants in the building pay market rents.

Mr. Harmon argued that New York City’s rent laws violate the Constitution by taking his property without just compensation.

This is not the first time Mr. Harmon has challenged rent control laws in the courts, nor is it the first time that his case has been denied. The Supreme Court does not release any statements when it declines to hear a case.

Previous denials of Mr. Harmon’s Earlier suits filed by Mr. Harmon sought to remove a rent-controlled tenant so that the Harmons’ college-age granddaughter could live in the unit. Most recently, he took the case to the the United States Court of Appeals for the Second Circuit, which ruled last September that the rent-stabilization law did not constitute a “taking” and that Mr. Harmon had acquired the property with “full knowledge that it was subject to RSL.”

In February 2012, Professor Richard Epstein discussed the case in a Environmental Law & Property Rights Practice Group Podcast.  You can listen to it here.




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