FedSoc Blog

October 1st marks the first day of the 2012 Supreme Court Term. Thus far the Court's docket includes major cases about affirmative action, international law and the alien tort statute, national security, criminal law, and others.  Notable cases include Fisher v. University of Texas at Austin, concerning the Equal Protection Clause and a public university's use of race in undergraduate admissions; Kiobel v. Royal Dutch Petroleum, about the application of the Alien Tort Statute to human rights abuses abroad, and whether the statute covers corporations; Clapper v. Amnesty International USA, regarding the right to challenge the constitutionality of a global terrorism wiretapping program; Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, concerning the proof that investors need to pursue a securities fraud claim by class-action lawsuit; and Florida v. Harris and Florida v. Jardines, about police use of a drug-sniffing dog to search the exterior of a private residence under the Fourth Amendment, and whether a dog’s “alert” constitutes probable cause for search of a private vehicle.  The Court is also likely to add other significant cases, including potentially a case filed by proponents of California’s “Proposition 8” challenge, which now has a certiorari petition pending. In addition to these cases and others, the panelists will discuss the current composition and the future of the Court, a particularly timely topic in light of the upcoming presidential election. On September 27th, the Federalist Society held its October Term 2012 preview at the National Press Club. 

Featuring:

• Mr. Tom Goldstein, Founding Partner, Goldstein & Russell P.C.
• Prof. Nicholas Quinn Rosenkranz, Professor of Law, Georgetown University Law Center
• Ms. Carrie Severino, Chief Counsel and Policy Director, Judicial Crisis Network
• Mr. Stuart Taylor, Contributing Editor, National Journal
• Hon. Kenneth L. Wainstein, Partner, Cadwalader, Wickersham & Taft
• Moderator: Mr. Pete Williams, NBC News Justice Correspondent

JURIST reports:

Bank of America (BOA) announced Friday that it has agreed to pay $2.43 billion to settle a class action lawsuit with investors over its $18.5 billion acquisition of Merrill Lynch in January 2009. Investors alleged that BOA failed to disclose information about Merrill and made misrepresentations about Merrill's financial health. BOA stated that it denied these allegations but chose to settle because it was in the best interests of its shareholders to avoid a lengthy and expensive legal battle. The proposed settlement will be reviewed by the US District Court for the Southern District of New York. As a part of the settlement, BOA has agreed to institute new corporate governance policies. Commentators stated that the settlement was unexpectedly large given the historical context and that this and several other suits have been major hits to BOA.

BOA has had a contentious litigation history recently. In July BOA to pay $375 million in a settlement with bond insurer Syncora Guarantee over claims that Syncora was misled into insuring toxic mortgage-backed securities of BOA-owned Countrywide Financial Corporation. Also that month a federal judge rejected a motion by BOA to dismiss a shareholder lawsuit alleging BOA's purposeful concealment of the bank's exposure to billions of dollars in loan repurchase claims and its problematic reliance on an electronic loan registry. In December BOA reached a $315 million settlement of claims brought by investors alleging they were misled with respect to mortgage-backed investments, and a $335 million settlement with the Department of Justice, relating to discriminatory lending practices. In June 2011 BOA announced an $8.5 billion settlement agreement arising from claims that it had sold bad securities that contributed to the housing market collapse.

According to the New York Law Journal:

The lawyer for the Republican House majority insisted yesterday that Congress acted rationally when it defined marriage exclusively as between one man and one woman.

The attorney, former Solicitor General Paul Clement, told the U.S. Court of Appeals for the Second Circuit that denying same-sex couples federal benefits accorded heterosexual married couples was intended to promote uniformity at the federal level while leaving the states to decide for themselves the definition of marriage.

"I don't think anyone on either side minimizes the importance of what's at stake here," said Clement . . . .

But Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison countered that there can be no rational basis for the act's discrimination against her client, Edie Windsor, who was forced to pay taxes on the estate of her spouse, Thea Spyer, from which she would have been exempt had the couple been heterosexual.

"The single question is whether Section 3 of DOMA is unconstitutional as it applies to an 83-year-old lesbian widow who had to pay $353,000 in estate taxes and wants her money back," Kaplan said.

Kaplan and Clement, who was hired to defend the law by a 3-2 majority of the Bipartisan Legal Advisory Group led by House Majority Leader John Boehner, R-Ohio, fielded questions from the judges on the degree of scrutiny the court should apply to DOMA, with Clement arguing rational basis scrutiny and Kaplan arguing for a heightened form of scrutiny with the proviso that the law should be overturned under either approach.

In June, Southern District Judge Barbara Jones applied rational basis scrutiny in finding the law violated the equal protection clause, saying it was "unclear how DOMA advances the interest of preserving marriage."

Jones said the federal government was intruding on an area traditionally left to the states and she could see no "logical relationship" between the law and the "legitimate governmental goals" of "promoting family values and responsible parenting."

Yesterday, Acting Assistant Attorney General Stuart Delery was in an unusual procedural posture as a result of a decision by President Barack Obama and Attorney General Eric Holder in February 2011 to stop defending the law on the grounds that §3 should be subject to, and could not survive, heightened scrutiny.

The purpose of heightened scrutiny, said Delery, was in "smoking out improper rationales" and making sure that the reasons behind making a classification are appropriate. One of several factors considered in heightened scrutiny analysis is whether a disfavored group has historically lacked political power.

Jacobs' first question for Delery was to explain the government's reason for being there, given that it backed Windsor before Jones and is opposed to DOMA.

"In my day, when you won, you didn't appeal," Jacobs said.

Delery said the government is nominally a defendant, as it was the United States that was ordered by Jones to recognize Windsor as eligible for the estate tax exemption—a decision stayed pending appeal.

Jacobs said the government's argument that homosexuals lack political power was less than credible given that 145 representatives in Congress, led by House Minority Leader Nancy Pelosi, D-Calif., filed a pro-Windsor amicus brief and the president and the attorney general won't defend an act of Congress.

"Your [Delery's] presence here is like an argument against your argument," Jacobs said.

When States Go Broke discusses the problem of fiscal crises in American states and the best way to meet the political and fiscal challenges they present.  The book features insights from leading scholars in a variety of disciplines, and facilitates debate about the origin and context of the crises, and what regimes bankrupt states should adopt.

In this FedSoc Faculty Book Podcast, David Skeel, the S. Samuel Arsht Professor of Corporate Law at the University of Pennsylvania Law School, is joined by critical commenter Richard Hynes, Professor of Law and Director of John M. Olin Program in Law and Economics at the University of Virginia School of Law, to discuss the book.

Click here to view this article on the source site »

Thomson Reuters reports:

A prominent federal judge said on Thursday that the infestation of a prison cell with mice and cockroaches may violate the U.S. constitutional protection against cruel and unusual punishment, even if the inmate is not physically harmed.

Writing for a panel of the 7th U.S. Circuit Court of Appeals in Chicago, Circuit Judge Richard Posner nonetheless said an inmate who objected to such conditions in his Illinois state prison cell could not recover damages because the state did not waive its immunity from suit.

The case was brought by Calvin Thomas, who according to Illinois records is serving a 7-year prison term for burglary.

Thomas, 51, claimed he was forced to endure unhealthy conditions in his cell at the Vienna Correction Center because it had been infested by pests, and because rainwater came through a missing window pane.

U.S. District Judge G. Patrick Murphy in East St. Louis, Illinois dismissed the lawsuit, saying the state did not waive immunity and that Thomas failed to allege any harm.

While the three-judge appeals court panel agreed with the first reason, it said Murphy appeared to wrongly assume that "creation of a mere hazard to health" could never result in an violation of the Eighth Amendment to the U.S. Constitution.

Posner said "heavy, protracted infestation" could justify damages even if a prisoner escaped disease or distress, and that it is "pretty obvious" that living in a small cell infested with mice and cockroaches could cause psychological harm.

Depending on the nature and risks of the infestation and a prisoner's known psychological sensitivities, "a trier of fact might reasonably conclude that the prisoner had been subjected to harm sufficient to support a claim of cruel and unusual punishment even if he had not contracted a disease or suffered any physical pain," Posner wrote.

Lyle Denniston writes at Constitution Daily:

The Supreme Court, getting set for opening its new term, decided this week that it will take a serious look for the first time in nearly five decades at the constitutional privacy – or not – of individual’s blood chemistry.  The justices agreed to decide whether police can order that a blood sample be taken from a suspect, without first getting a judge’s approval to do so.

It is clear, under the Constitution’s Fourth Amendment, that government analysis of an individual’s blood or other bodily fluids is a “search” that can only be conducted within limits. Indeed, the court remarked in a blood search case in 1966 that “the integrity of an individual’s person is a cherished value in our society….Search warrants are ordinarily required…where intrusions into the body are concerned.”

But it was also in that very case – Schmerber v. California – that the court ruled that police can sometimes direct that a blood sample be made, in a drunk driving case, if there is an emergency situation that justifies the failure to first get a search warrant.   That is the ruling that the Court will be analyzing anew in the new term that starts next Monday, in a case from Missouri.

The issue of blood chemistry’s privacy arises often in cases involving suspected drunk driving.  But it can arise in other factual situations, too, and the degree of privacy for one’s blood is an abiding constitutional issue that has divided the lower state and federal courts.   The Supreme Court will attempt to provide some clear new guidance.

It is standard Fourth Amendment law that a search warrant is ordinarily required before police, or other government officials, may intrude into a private sphere or space.   But it is also a common understanding that, since the Fourth Amendment only bans searches that are “unreasonable,” it is reasonable to give police some leeway.   So there are exceptions to the usual requirement that they go to a judicial officer and get a warrant approved before actually carrying out a search.

One exception is a situation that the police regard as an emergency.   In legal terms, an exception to the warrant requirement is made when there are “exigent circumstances.”  One of those emergency-like situations arises when police fear that, if they take the time to get a warrant, vital evidence is likely to be destroyed.  If, for example, police enter an apartment where they have good reason to believe that illegal drugs are being sold, they need not get a warrant if there is a likelihood that the drugs will be flushed down a toilet before a warrant could arrive.

The new case in the Supreme Court, Missouri v. McNeely, involves a police officer in Cape Girardeau, Mo., who took a drunk-driving suspect he had arrested to a hospital and told the staff there to take a blood sample, after the suspect refused to permit it.   The officer said he understood he did not need a warrant, because of the fact that, as alcohol remains in the blood system, it begins to dissipate.  If one waits too long to test for the alcohol level, it may drop and the evidence of intoxication will be gone, the officer reasoned.

The Missouri Supreme Court said that, if the situation is not truly an emergency one, the mere fact that the alcohol level will drop over time is not sufficient reason to avoid getting a warrant.   It noted that there was no evidence in this case that a warrant was unavailable; the officer just thought he did not need one.

David Kravets writes for Wired:

A federal appeals court on Tuesday said it was giving the Transportation Security Administration until the end of March to comport with an already 14-month-old order to “promptly” hold public hearings and take public comment concerning the so-called nude body scanners installed in U.S. airport security checkpoints.

The public comments and the agency’s answers to them are reviewable by a court, which opens up a new avenue for a legal challenge to the agency’s decision to deploy the scanners. Critics maintain the scanners, which use radiation to peer through clothes, are threats to Americans’ privacy and health, which the TSA denies.

On July 15, 2011, the U.S. Circuit Court of Appeals for the District of Columbia Circuit set aside a constitutional challenge brought by the Electronic Privacy Information Center trying to stop the government from using intrusive body scanners across U.S. airports. But the decision also ordered the TSA “to act promptly” and hold public hearings and publicly adopt rules and regulations about the scanners’ use, which it has not done, in violation of federal law.

Then on Aug. 1 of this year, the court ordered (.pdf) the TSA to explain why it had not complied with its order. In response, the agency said it was expected to publish, by the end of February, a notice in the Federal Register opening up the Advanced Imaging Technology scanners to public comments and public hearings. That would be 19 months after the court order.

On Tuesday, the court gave the TSA until the end of March, meaning the agency has 20 months to “promptly” comply with the court’s order. EPIC was urging the appeals court to reverse the court’s blessing of the so-called nude body scanners because of the TSA’s lack of compliance with the court’s original order.

The Transportation Security Administration has denied allegations from the Electronic Privacy Information Center that it was stonewalling the court’s order. (.pdf) The TSA said the agency was having staffing issues and was awaiting approval from the Department of Homeland Security and the Office of Management and Budget before it releases public documents associated with its 2009 decision to make the body scanners the “primary” security apparatus at the nation’s airports.

The three-judge appellate court, which is one stop from the Supreme Court, ruled last year that the TSA breached federal law when it formally adopted the Advanced Imaging Technology scanners as the primary method of screening. The judges — while allowing the scanners to be used — said the TSA violated the Administrative Procedures Act for failing to have a 90-day public comment period, and ordered the agency to undertake one.

Under the Administrative Procedures Act, agency decisions like the TSA’s move toward body scanners must go through what is often termed a “notice and comment” period if their new rules would substantially affect the rights of the public — in this case, air passengers. But the court’s decision last year did not penalize the TSA for its shortcomings. The TSA argued to the court that a public comment period would thwart the government’s ability to respond to “ever-evolving threats.”

Concerns about the machines include the graphicness of the human images, the potential health risks and the scanners’ effectiveness.

CNN reports:

U.S. drone strikes in Pakistan have killed far more people than the United States has acknowledged, have traumatized innocent residents and largely been ineffective, according to a new study released Tuesday.

The study by Stanford Law School and New York University's School of Law calls for re-evaluation of the practice, saying the number of "high-level" targets killed as a percentage of total casualties is extremely low - about 2%.

The report accuses Washington of misrepresenting drone strikes as "a surgically precise and effective tool that makes the U.S. safer," saying that in reality, "there is significant evidence that U.S. drone strikes have injured and killed civilians."

It also casts doubts on Washington's claims that drone strikes produce zero to few civilian casualties and alleges that the United States makes "efforts to shield the drone program from democratic accountability."

For more on targeted drone attacks, click here to view an article the Federalist Society published on the subject last year by Michael W. Lewis and Vincent J. Vitkosky, and click here to listen to a Practice Groups podcast on the issue.

According to NBC News:

There are still 42 days and four debates left before the presidential election and many signs point to a close outcome, but recent polling both nationally and in key battleground states like Ohio has conservatives concerned about the impact President Obama could have on the judiciary in a second term.

So far Obama has appointed 159 judges to the federal bench, including his two Supreme Court selections, Sonia Sotomayor and Elena Kagan.

With Sotomayor and Kagan, Obama simply replaced two members of the liberal bloc on the court (John Paul Stevens and David Souter) with two younger liberals. But most of the Obama-appointed judges – 127 of them – are trial judges who exert less influence on the broad direction of the law than do appeals court judges or Supreme Court justices.

Both on the Supreme Court – where “swing vote” Justice Anthony Kennedy and conservative Justice Antonin Scalia are age 76 – and on the courts of appeal, where there are now 14 vacancies, Obama would be able to nudge the courts in a progressive direction if he wins a second term.

The high court begins its 2012-13 term on Monday and has scheduled arguments on the use of race in undergraduate admissions decisions at the University of Texas and on whether multinational firms can be sued for their alleged role in human rights abuses that occur outside the United States. It’s also likely the court will take up challenges to the 1996 Defense of Marriage Act, which defines marriage as solely the union of one man and one woman.

“It would be a bad mistake for conservatives to get gloomy and defeatist. This election is very winnable,” said Ed Whelan, president of the Ethics and Public Policy Center and a former Scalia law clerk who served in the Justice Department under President George W. Bush.

But Whelan added, “There are lots of reasons why anyone concerned about America’s future should rue the prospect of President Obama’s re-election. What President Obama would do to the Supreme Court is high on the list.”

“The potential impact of the next president on the Supreme Court is immense,” said Carrie Severino, the chief counsel and policy director at the Judicial Crisis Network, a right-of-center advocacy group. “There could easily be three nominations during the next term. … Most people expect there to be at least one vacancy.”

She said if Obama were re-elected and got three more high court nominations, “that would put him in the position of having nominated the majority of the justices on the Supreme Court. That’s an incredible influence over the way the court shapes American society.”

She said there’s now a 5-4 split on issues that have been before or are coming before the court, such as whether schools can use applicants’ and students’ race or ethnicity in admissions or in assigning students to specific public schools.

From racial preferences to gun owners’ rights to immigration to same-sex marriage, “you name it – there are so many issues where the outcome turns on one vote at the Supreme Court and the president could easily be shaping that next vote,” Severino said.  And those concerns extend even to a possible Romney presidency.

Curt Levey, president of the Committee for Justice, a conservative group that tracks judicial nominations, said Chief Justice John Roberts’ decision to join the four liberal-leaning justices in upholding Obama’s Affordable Care Act “has made conservatives think somewhat differently” about judicial nominees. “There’s a lot of sober thinking among conservatives that it is not just enough to appoint somebody who we know to have the right philosophy – you have to appoint somebody who has shown, either as a judge or perhaps in some other setting, that they will stick with that philosophy even when there’s political pressure to do otherwise.”

Lyle Dennison reports at SCOTUSblog:

The Supreme Court, preparing to open a new Term next Monday, on Tuesday granted review of six new cases and overturned a lower court ruling on new election districts for West Virginia’s representatives in Congress — a case left over from last Term.

The newly granted cases are Gabelli v. Securities and Exchange Commission (11-1274), Levin v. United States (11-1351), Missouri v. McNeely (11-1425), Maracich v. Spears (12-25),  and Delia v. E.M.A. (12-98).  In the sixth case, Millbrook v. United States (11-10362), the Court wrote a new question that it will decide on the immunity of the federal government from a lawsuit claiming negligence by officials of the Lewisburg, Pa., prison over a sexual assault on an inmate by three guards.  At least some of the cases, and perhaps all, will be argued in the January sitting, which begins January 4.

 The Justices issued an unsigned ruling, with no noted dissents, in the West Virginia congressional redistricting case — Tennant v. Jefferson County Commission (11-1184).  The Court found that a three-judge District Court had wrongly insisted that there be almost no difference in population between the House districts drawn up after the 2010 Census.  West Virginia had only three House districts, before and after the Census, but population shifts required a new election district map.  The lower court, the “per curiam” (by the Court) opinion said, had failed to defer to the political judgment of West Virginia’s legislators in protecting incumbent House members and in avoiding splitting up counties among different districts.  The Court had temporarily blocked the lower court decision last Term.  It acted without written briefs or oral argument.

Here, in summary, are the issues the Court agreed to hear in the five cases (other than Millbrook):

Gabelli — calculation of the five-year limitation on the SEC’s power to impose a penalty for securities fraud.

Levin — scope of legal immunity of military medical personnel for an alleged “battery” while providing medical care to a civilian.

McNeely – police authority to take a blood sample from a driver who allegedly was drunk, when the officer has no warrant but wants to act quickly because of the chemical fact that alcohol in the blood dissipates over time.

Maracich — lawyer’s legal right to obtain personal information from driver’s license records, when the attorneys plan to use it in lawsuits and federal law supposedly insulates such information from disclosure.

Delia — state power to recover funds spent on providing medical care to the poor or disabled under the federal Medicaid law, when the patient has received funds from another source.

At the Volokh Conspiracy, Orin Kerr raises the question of whether there are any Fourth Amendment protections for wireless networks:

Here’s the question: Does governmental interception and analysis of the contents of a person’s wi-fi traffic constitute a Fourth Amendment search? And does it depend on whether the traffic is encrypted or unencrypted? The answer turns out to be surprisingly murky. Because the Wiretap Act has been thought to protect wireless networks, the Fourth Amendment issue has not come up: There’s a surprising lack of caselaw on it. . . .

Imagine a criminal suspect uses an unencrypted wireless access point to send a communication to a co-conspirator. Maybe the suspect is using a wireless network at a hotel or a coffee shop, and he sends an e-mail indicating his involvement in the crime. A government agent is watching the suspect, however, and is sniffing all of the traffic over the wireless access point. Does reading the suspect’s e-mail broadcast over the network constitute a search?

There are two ways to look at the question. One way is to focus on how the technology actually works. The suspect may think his communications are private, but the network is actually broadcasting them to others: It’s just that the others’ computers are normally configured to ignore the broadcast. If you focus on how the network works, then you probably would conclude that the communications are not private and the sniffing is not a search. Notably, that is how courts ruled when they were presented with the analogous question in the context of cordless telephones. As I wrote in a Note in my computer crime law casebook:

In the 1980s, companies began offering cordless telephones for sale to the public. Cordless telephones work by broadcasting FM radio signals between the base of the phone and the handset. Each phone has two radio transmitters that work at the same time: the base transmits the incoming call signal to the handset, and the handset transmits the outgoing call signal to the base. Before the mid–1990s, cordless phones generally used analog FM signals that were easy to intercept. Government agents would occasionally use widely available FM radio scanners to listen in on the cordless telephone calls of suspects without a warrant. Courts that have addressed this issue have rejected claims of Fourth Amendment protection in the contents of cordless telephone calls. Because cordless-phone intercepting devices merely pick up a signal that has been “broadcast over the radio waves to all who wish to overhear,” the interception was held not to violate any reasonable expectation of privacy. McKamey v. Roach, 55 F.3d 1236, 1239–40 (6th Cir. 1995). See also Tyler v. Berodt, 877 F.2d 705, 707 (8th Cir. 1989); Price v. Turner, 260 F.3d 1144, 1149 (9th Cir. 2001). Courts reached the same result when the suspect was using a traditional landline telephone and happened to engage in conversation with someone who was using a cord-less phone. See United States v. McNulty, 47 F.3d 100, 104–106 (4th Cir. 1995).

That’s one plausible view. An alternative plausible view is to focus on the social understanding of wireless networks. Users of unsecured wireless networks may recognize the risk that their communications will be monitored, but for the most part they still consider their communications over wireless networks to be private in nature.

The Associated Press reports:

A federal appeals court reversed itself Monday and threw out a judge's landmark ruling that the Army Corps of Engineers was liable for billions of dollars in Hurricane Katrina flood damage that property owners blame on the corps' maintenance of a New Orleans shipping channel.

The same three-judge panel from the 5th U.S. Circuit Court of Appeals that sided with plaintiffs earlier this year withdrew that decision and replaced it with a new ruling in the federal government's favor.

The panel's new opinion says the corps is completely insulated from liability by a provision of the Federal Tort Claims Act called the "discretionary-function exception."

In 2009, U.S. District Judge Stanwood Duval Jr. rejected the federal government's argument that it is entitled to immunity from lawsuits blaming Katrina's flood damage on the corps' operation and maintenance of the Mississippi River-Gulf Outlet navigation channel.

Plaintiffs' attorneys argued that the corps' delay in armoring the channel was the result of erroneous scientific judgments, not public-policy considerations that would make it immune to the homeowners' claims.

But the 5th Circuit panel disagreed, saying there was ample evidence that decisions leading to the corps' delay in armoring the channel had a "public policy character."

"Although the Corps appears to have appreciated the benefit of foreshore protection as early as 1967, the record shows that it also had reason to consider alternatives (such as dredging and levee `lifts') and feasibility before committing to an armoring strategy that, in hindsight, may well have been optimal," the panel wrote in its new opinion.

Bloomberg News reports:

A Wisconsin law requiring certain public worker unions to vote annually on whether they wish to remain in existence is constitutional, a lawyer for the state told a federal appellate court.

Special Counsel Joseph Olson today asked the Chicago-based three-judge panel to reverse U.S. District Judge William Conley’s March 30 ruling that the recertification law violates U.S. constitutional guarantees of equal protection under the law by classifying some unions as engaged in “public safety” and exempting them from compliance.

While he upheld the bulk of Governor Scott Walker’s 2011 legislation, Conley also struck down a provision barring the voluntary deduction of union dues from “general employee” paychecks.

“Now they have an annual election where they’re allowed to voice their pleasure or displeasure,” with their collective bargaining agent, Olson told the judges.

Known as Act 10, the legislation required unions to poll their members yearly on whether they wanted to be in the organization. To continue, the union would have needed positive votes from a majority of all its members, not just those voting.

The Wisconsin Education Association Council last year filed suit at the federal courthouse in Madison, the state’s capital city, seeking to overturn the law, which it said was politically motivated and discriminatory.

UPDATE: This teleforum has been postponed.

Tomorrow September 2th, FedSoc's International & National Security Law Practice Group and the Free Speech & Election Law Practice Group is sponsoring a teleforum on "Free Speech, International Law, and the Impact of Violence Against U.S. Diplomatic Missions Abroad."

Since a recent series of riots and violent attacks, the U.S. has shut down some of its embassies and consulates in the Middle East.  The worst of these attacks resulted in the death of U.S. Ambassador to Libya Christopher Stevens and three other Americans.  Many, including members of the U.S. government, have blamed the attacks on a film made by a U.S. filmmaker, for which a trailer was posted on YouTube.  Should the violent reaction to a U.S. film cause us to rethink the nature of free speech protections for hate speech in the U.S.?  Should the U.S. government more aggressively defend the free speech protections under the U.S. Constitution in the global community?

Here are the details for the call:

Start : Tuesday, September 25, 2012 12:00 PM

End   : Tuesday, September 25, 2012 1:00 PM

Featuring:

    Prof. Julian Ku, Professor of Law and Faculty Director of International Programs, Hofstra University School of Law
    Prof. Peter J. Spiro, Charles R. Weiner Professor of Law, Temple University Beasley School of Law

Agenda: Call begins at 12:00 noon Eastern Time.

Registration details: Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Back in June, FedSocBlog noted that C. Boyden Gray filed a lawsuit claiming that the Dodd–Frank Wall Street Reform and Consumer Protection Act is unconstitutional. Now, BLT: The Blog of Legal Times reports that major parties have joined the suit:

Three states have joined a lawsuit challenging the constitutionality of the Dodd-Frank Act, complaining that it gives the government too much power to take over and liquidate nonbank companies whose failure would jeopardize the financial system.

The states of Michigan, Oklahoma and South Carolina joined a broader suit attacking Dodd-Frank that was filed in June in U.S. District Court for the District of Columbia by a Texas community bank, the Competitive Enterprise Institute and the 60 Plus Association.

The original suit focused in large part on the Consumer Financial Protection Bureau, complaining that it "aggregates the power of all three branches of government in one unelected, unsupervised and unaccountable bureaucrat," as former White House counsel C. Boyden Gray, founder of Boyden Gray & Associates in Washington, said when the suit was filed.

The three states, however, specifically declined to go after Dodd-Frank on those grounds. Instead, their participation is limited to a new challenge that was added to an amended complaint filed yesterday.

The states are asking the court to review the constitutionality of the Orderly Liquidation Authority, established under Title II of Dodd-Frank.

Intended as a so-called third way between bankruptcy and bailout, the new authority allows the secretary of the Treasury to order the Federal Deposit Insurance Co. to take over and liquidate a nonbank determined to be "in default or in danger of default," and if its collapse would have a "serious adverse effect on the financial stability of the United States."

Such a "substantial power is fundamentally inconsistent with our constitutional framework and checks and balances," said Oklahoma Attorney General Scott Pruitt during a conference call with reporters. "This is a very important case."

The state AGs complain that the process has almost no judicial oversight. A company can challenge the Treasury secretary's decision in the U.S. District Court for the District of Columbia — but the court only has 24 hours to rule on the petition. If the court doesn't act, the government's action will be automatically considered approved.

Also, creditors' rights are few. In a bankruptcy, creditors often appear before a bankruptcy judge to argue the merits of their claims. Under the new resolution process, creditors lack such a forum.

In the complaint, the plaintiffs allege that the new authority "abrogates the rights under the U.S. Bankruptcy Code of creditors of institutions that could be liquidated, destroying a valuable property right held by creditors — including the State Plaintiffs-under bankruptcy law, contract law, and other laws, prior to the Dodd-Frank Act."

The states also complain that they "would be barred, as a matter of law, from being told of the liquidation until after the Treasury secretary's liquidation order goes into effect."

The plaintiffs allege the new authority violates the separation of powers clause in the Constitution. "Title II's combinations of delegations, and eliminations of checks and balances, is unprecedented and unconstitutional," the complaint states.

They also allege it violates due process rights because the Treasury secretary has "effectively unlimited power" to decide if a company will be liquidated

However, the liquidation power is analogous to that the FDIC has possessed for decades to take over failing federally insured banks. Gray argued that the "scope is much broader" under Dodd-Frank because the power extends to nonbank companies.