FedSoc Blog

SCOTUS to Hear Important Environmental Regulation Case on Monday

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by Publius
Posted November 30, 2012, 3:30 PM

Henry I. Miller, the Robert Wesson Fellow in Scientific Philosophy and Public Policy at Stanford University’s Hoover Institution, writes at Forbes:

On December 3, the U.S. Supreme Court will consider who is best suited to set national environmental policy – the experienced scientists and regulators at the Environmental Protection Agency or activist trial lawyers.

In Pacific West v. Northwest Environmental Defense Center (also known as Decker v. NEDC) the justices will review a 2011 Ninth Circuit Court of Appeals decision that overturned 35 years of EPA Clean Water Act regulation of the logging industry, the source of 2.5 million American jobs.  The high court will decide between two theories of regulation: (1) the law tells states (as the EPA insists) to regulate runoff from logging roads via “Best Management Practices” (which are flexible, federally supervised standards tailored to local conditions, that activists cannot challenge in court); or (2) the law requires (as the Ninth Circuit says) “point source” permits usually reserved for factories, mines and chemical plants, and subject to court challenges.

This arcane technical dispute has real-world consequences.

Under the Ninth Circuit ruling, a permit could be demanded for every drain and ditch that directs water from a logging road to a fish-bearing stream.  The U.S. Forest Service estimates that getting all its roads fully certified could take as much as a decade.  The state of Washington has said that, on average, it will need one permit per mile for all 55,000 miles of its eligible roads, with, by some estimates, the cost of processing a single permit running $2,800.  And, unlike BMPs, permits will be subject to activists’ lawsuits.  Senator Ron Wyden (D-Oregon) has warned that upholding the Ninth Circuit decision will “bury private, state and tribal forest lands in a wave of litigation.”  More like a tsunami.

Meanwhile, 31 state attorneys-general noted in their Supreme Court brief that, “Forestry practices in the United States are now conducted under the most comprehensive program of BMPs of any land use activity in the nation.”  The former dean of the Yale School of Forestry and Environmental Studies, John Gordon, worries that, “Injecting permit requirements into this [BMP] process will only make the ongoing upgrade of our [environmental protection] methods slower and more expensive, diverting resources from reducing sediment to the legal machinery of permit review and litigation.”  “In this case, environmental activists are not on the side of the environment,” he concluded.  The EPA agrees; regulators have insisted for decades that permitting was not designed for—and does not work for—forest road runoff even as state forest road BMPs are widely acknowledged to have proven effective and efficient.

At SCOTUSblog, John Elwood provides a detailed preview of the upcoming argument.  Among other things, he notes:

The case is of central importance to the logging industry and businesses that rely on it.  If the Ninth Circuit’s decision is upheld (and, of course, the regulations exempting logging roads are not finalized soon), in the near term, it would mean a significant additional regulatory burden on logging operations because of the expense in obtaining permits, the ability of environmental groups to delay the permitting process, and the “mind boggling” number of logging roads nationally – there are an estimated 15,000 miles of logging roads in the State of Maine alone and hundreds of thousands more in the Northwestern United States.  Depending on the Court’s rationale, a variety of work-arounds (from revised EPA regulations to blanket permits) could render the impact manageable in the longer term, but there is no question that affirmance would be disruptive to the logging industry.

When the case was first granted, many believed that the case reflected overreaching by the Ninth Circuit and concluded it was headed towards certain and overwhelming reversal.  The Northwest Environmental Defense Center (“NEDC”) – the plaintiff below, but the respondent at the Court – must “run the table” and win every issue presented to prevail.  Still, the case’s fate is far from clear.

 

 

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Senate Votes to Limit Indefinite Detention

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by Publius
Posted November 30, 2012, 1:47 PM

According to the Huffington Post:

The Senate took a step Thursday toward ending the indefinite detention of Americans in the U.S., voting for a narrow amendment that some civil liberties groups opposed, even though they said it was in the right direction.

The measure, offered by Sen. Dianne Feinstein (D-Calif.) as an amendment to the National Defense Authorization Act of 2013, specifies that citizens and legal residents suspected of terrorism in the U.S. cannot be held without trial indefinitely.

"I know this is a sensitive subject, but I really believe we stand on the values of our country, and the value of our country is justice for all," said Feinstein before the Senate voted 67 to 29 to add her provision to the NDAA.

Civil libertarians had problems with her amendment, even though many regarded it as a positive step.

The key sentence in her measure says: "An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention."

First, the rights groups argued, the measure does not provide justice for all, because it does not apply to non-citizens or Americans caught overseas.

"The constitutional requirements of due process of law apply to all persons within the United States," a coalition of 20 groups wrote in a letter to Feinstein Thursday. "The 5th Amendment to the Constitution states that 'No person shall be…deprived of…liberty…without due process of law.'"

The groups also said they worried that part of that sentence suggests that Congress believes it can write laws that abridge basic constitutional protections in the future.

"The clause 'unless an Act of Congress expressly authorizes such detention' could be read to imply that there are no constitutional obstacles to Congress enacting a statute that would authorize the domestic military detention of any person in the United States," the letter said.

Senators who had supported the detention of Americans in the past seemed to agree with the civil liberties groups.

One, Armed Services Committee Chairman Carl Levin (D-Mich.), pointed to the same exception. "This is a big 'unless,'" he said.

"I believe that the 2001 authorization for the use of military force authorized the detention of U.S. citizens when appropriate in accordance with the laws of war," said Levin, referring the authorization Congress passed after the 9/11 attacks.

Sen. Rand Paul (R-Ky.) an opponent of indefinite detention, said he believed the amendment does shield citizens, and said American terrorist suspects would be treated just like criminals and get trials, arguing that if Americans give up a basic constitutional right to trial, terrorists have won.

"People say, 'But these terrorists are horrible people.' Yes, they're horrible people, but every day and every night in our country horrible people are accused of crimes and they are taken to court," said Paul. "They have an attorney on our their side. They have a trial. People who we despise, people who murder and rape, are given trials by juries. We can try and we can prosecute terrorists."

 

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SCOTUSblog Tries Again to Get Press Credentials to Cover Supreme Court

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by Publius
Posted November 30, 2012, 9:08 AM

Poynter reports:

SCOTUSblog has again applied for press credentials to the U.S. Senate’s Daily Press Gallery, the first step for the blog gaining its own press credentials to cover the U.S. Supreme Court. “We are just beginning on it, and it will take a while for us to vet it,” Press Gallery director Joe Keenan tells Poynter in an email.

SCOTUSblog publisher Tom Goldstein previously told Poynter’s Mallary Tenore “his understanding from staff conversations with the Senate Press Gallery was that SCOTUSblog wouldn’t qualify because it doesn’t have broad-based advertising.”

Linda Greenhouse wrote Wednesday night that the blog’s sponsorship by Bloomberg might get it through the gate: “We’d look at them all over again,” she reports Keenan told her, “noting that the gallery has changed substantially since my own brief stint covering Congress in the mid-1980’s.”

Reached by email, Goldstein confirms the Press Gallery has asked SCOTUSblog for more information. “It’s odd, because we had the sponsor when we were turned down last time. But we’re trying, and they are being very collegial about it,” he writes.

Keenan told Tenore, “if a practicing lawyer applied to us, there is almost no way they would be credentialed.” Goldstein and his wife Amy Howe run SCOTUSblog out of Goldstein & Russell, a boutique law firm “focusing on representation before the United States Supreme Court,” as the firm’s site puts it. Keenan also told Tenore the Press Gallery’s rules for credentialing haven’t been updated in a decade but noted online publications including The Huffington Post and The Daily Caller had been credentialed.

SCOTUSblog currently gets access to the court because its reporter, Lyle Denniston, files reports for WBUR in Boston as well. But Dennison is 81 and could conceivably stop reporting on the Supreme Court at some point. SCOTUSblog provides invaluable coverage of the court, Greenhouse writes.

 

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Will the President Shift the Court to the Far Left?

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by Publius
Posted November 29, 2012, 4:20 PM

Ed Whelan writes in the next issue of National Review:

Presented the gift of two Supreme Court seats to fill in his first 15 months in office, Barack Obama appointed liberals Sonia Sotomayor and Elena Kagan. Given their relative youth--Sotomayor was 55 when appointed, and Kagan only 50--Obama likely cemented their seats on the left for the next two or three decades.

In his second term, President Obama could, depending on which vacancies arise, push the Court further leftward and engender a new era of aggressive liberal judicial activism. At the very least, he is likely to entrench another seat on the left.

As a backdrop for assessing the damage that Obama might inflict, let's consider the current state of the Court along two dimensions: ideology and age.

In rough ideological terms, the Court currently consists of four judicial conservatives (John Roberts, the chief justice--in my judgment, the Obamacare ruling provides no basis for reclassifying his general position on the ideological spectrum--along with Antonin Scalia, Clarence Thomas, and Samuel Alito) and four liberals (Ruth Bader Ginsburg, Stephen Breyer, Sotomayor, and Kagan). Then there's the swing justice, Anthony Kennedy, who has swung with the liberals in some huge cases and with the conservatives in others. For example, Kennedy provided the critical fifth vote in 1992 to retain Roe v. Wade and in 2003 to invent a constitutional right to homosexual activity, yet he also joined (and presumably authored) the majority opinion in Bush v. Gore and wrote the Citizens United ruling against campaign-finance restrictions.

As for age, the nine justices can be grouped into two cohorts. In the older cohort are Ginsburg (79), Scalia (76), Kennedy (76), and Breyer (74)--two liberals, a conservative, and Kennedy. In the younger cohort, the conservatives--Thomas (64), Alito (62), and Roberts (57)--currently have a three-to-two edge over the liberals--Sotomayor, now 58, and Kagan, the youngster at 52. (It's striking that Thomas, who has been on the Court for more than two decades, is only two years older than Alito.)

Combining these dimensions, we see that if Obama is able, say, to replace both Ginsburg and either Scalia or Kennedy with liberals in their 50s, he will establish a liberal majority on the so-called Roberts Court and create a four-to-three edge for liberals among the younger justices. If he is somehow able to replace Ginsburg, Scalia, and Kennedy with young liberals, he will likely ensure two or three decades of liberal dominance of the Court. . . .

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Federal Courts to Hear Challenges to Obama’s Judicial Appointments

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by Publius
Posted November 29, 2012, 3:59 PM

The AP reports:

In a major test of presidential power, federal appeals courts are starting to hear legal challenges to President Barack Obama's decision to bypass the Senate in appointing three members to the National Labor Relations Board.

The challenges in more than two dozen labor cases around the country have been winding their way through the legal system since Jan. 4, when Obama moved to fill vacancies on the board under the constitutional provision for filling an office when Congress is in recess.

Obama's move outraged business groups and Republican leaders, who contend the appointments were unconstitutional because the Senate was technically in session when the president acted. Administration officials say the Senate was actually in a 20-day recess, and the tactic of gaveling in and out of session every few days solely to avoid being in recess was a sham.

The 7th U.S. Circuit Court of Appeals in Chicago will be the first court to hear oral arguments on the issue Friday. The U.S. Court of Appeals for the District of Columbia Circuit will take up the issue in a similar case on Wednesday.

The courts will determine whether Congress can indefinitely block a president from appointing key administration officials by staying in pro forma sessions - where one Senator briefly goes into the chamber and no real business is conducted.

Legal experts say the outcome is uncertain because there is little precedent on the issue. Compelling arguments can be made to support both the exercise of the president's appointment power and the authority of the Senate to decide when it is in recess. . . .

Ultimately, the issue is likely to end up before the U.S. Supreme Court sometime in the next year.

 

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Is Law School Worth It?

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by Publius
Posted November 29, 2012, 10:36 AM

Writing in The New York Times, Lawrence E. Mitchell, the dean of Case Western University's Law School, defends attending law school against those who advise against it:

. . . For at least two years, the popular press, bloggers and a few sensationalist law professors have turned American law schools into the new investment banks. We entice bright young students into our academic clutches. Succubus-like, when we’ve taken what we want from them, we return them to the mean and barren streets to fend for themselves.

The hysteria has masked some important realities and created an environment in which some of the brightest potential lawyers are, largely irrationally, forgoing the possibility of a rich, rewarding and, yes, profitable, career.

The starting point is the job market. It’s bad. It’s bad in many industries. “Bad,” in law, means that most students will have trouble finding a first job, especially at law firms. But a little historical perspective will reveal that the law job market has been bad — very bad — before. To take the most recent low before this era, in 1998, 55 percent of law graduates started in law firms. In 2011, that number was 50 percent. A 9 percent decline from a previous low during the worst economic conditions in decades hardly seems catastrophic. And this statistic ignores the other jobs lawyers do.

Even so, the focus on first jobs is misplaced. We educate students for a career likely to span 40 to 50 years. The world is guaranteed to change in unpredictable ways, but that reality doesn’t keep us from planning our lives. Moreover, the career for which we educate students, done through the medium of the law, is a career in leadership and creative problem solving. Many graduates will find that their legal educations give them the skills to find rich and rewarding lives in business, politics, government, finance, the nonprofit sector, the arts, education and more.

What else will these thousands of students who have been discouraged from attending law school do? Where will they find a more fulfilling career? They’re not all going to be doctors or investment bankers, nor should they. Looking purely at the economics, in 2011, the median starting salary for practicing lawyers was $61,500; the mean salary for all practicing lawyers was $130,490, compared with $176,550 for corporate chief executives, $189,210 for internists and $79,300 for architects. This average includes many lawyers who graduated into really bad job markets. And the United States Bureau of Labor Statistics reports projected growth in lawyers’ jobs from 2010 to 2020 at 10 percent, “about as fast as the average for all occupations.”

It’s true, and a problem, that tuition has increased. One report shows that tuition at private schools increased about 160 percent from 1985 to 2011. Private medical school tuition increased only 63 percent during that period. But, in 1985, medical school already cost four times more than law school. And starting salaries for law graduates have increased by 125 percent over that period.

Debt, too, is a problem. The average student at a private law school graduates with $125,000 in debt. But the average lawyer’s annual salary exceeds that number. . . .

 

 

 

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Senator Mike Lee Backs Away from “No” Vote Policy on Obama Judicial Nominees

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by Publius
Posted November 29, 2012, 8:09 AM

BLT: The Blog of Legal Times reports:

A Republican senator is ready to remove one of the roadblocks that dogged this year's federal judicial nomination process.

One of the most vocal opponents of judicial opponents this year, Senator Mike Lee (R-Utah), won't restart his categorical "No" vote policy on all judicial nominees that started in January, when President Barack Obama made four controversial recess appointments, Lee spokesman Brian Phillips said this week.

Lee's stand against the recess appointments, which he says were unprecedented and happened when the Senate was in session, even led to an awkward vote where Lee sided against a nomination he supported: Robert Shelby, a noncontroversial nominee for district judge in Lee’s home state of Utah.

"I had to think of something in order to keep it in the news, because it's important people continue to talk about it, " Lee said during a speech to the Federalist Society this month. "I said at the outset that until such time as my party responds or I get some assurance from the president that this won't happen again, I’m going to continue to vote no. "

But now Lee says the Republicans have adequately responded by invoking a loosely defined Senate tradition of backing off from filling circuit court seats in the waning months of a president's term, dubbed the "Thurmond Rule." That rule was invoked in July.

"That issue is closed," spokesman Brian Phillips said. However, should the president again make recess appointments, Lee could again institute his policy, Phillips said. . . .

The video of Senator Lee's aforementioned talk at the Federalist Society's 2012 National Lawyers Convention can be watched here.

 

FedSoc’s Annual Faculty Conference Will Be Held Jan.4-5 in New Orleans

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by Publius
Posted November 28, 2012, 10:54 AM

The 15th Annual Federalist Society Faculty Conference will be held on January 4-5, 2013 in New Orleans. The purpose of our Annual Faculty Conferences is to provide an opportunity for those interested in the Society to share ideas and scholarship with each other. You can find more information, as well as RSVP, at this link.  Here is the agenda, which includes a visit by Justice Antonin Scalia:

Friday, January 4, 2013

Panel 1: Roundtable on Judicial Deference v. Judicial Engagement
1:00 p.m. - 2:30 p.m.
Location: Bacchus Room

  • Prof. Elizabeth Price Foley, Florida International University College of Law
  • Prof. Chrisopher Green, University of Mississippi School of Law
  • Prof. Joshua Hawley, University of Missouri School of Law
  • Prof. Lee Strang, University of Toledo College of Law
  • Moderator: Randy Barnett, Georgetown University Law Center

Young Legal Scholars Paper Presentations  
2:45 p.m. – 4:45 p.m.
Location: Bacchus Room

  • Papers - to be announced
  • Commenter: Prof. Michael McConnell, Stanford Law School
  • Commenter: Prof. James Lindgren, Northwestern University School of Law
  • Moderator: Prof. Eugene Volokh, UCLA School of Law

Seven-Minute Presentations of Works in Progress - Part I
5:00 p.m. – 6:00 p.m.
Location: Bacchus Room

Reception
6:00 p.m. – 7:30 p.m.
Location: Rex Room 

  • Hon. Antonin Scalia, United States Supreme Court (featured guest)

Saturday, January 5, 2013

Panel 3: Dodd Frank
8:30 a.m. - 10:00 a.m.
Location: Bacchus Room

  • Prof. Geoffrey Miller, New York University School of Law
  • Prof. David Skeel, University of Pennsylvania Law School
  • Mr. Adam White, Boyden Gray & Associates
  • Moderator: Prof. Todd Henderson, University of Chicago Law School

Seven-Minute Presentations of Works in Progress - Part II
10:00 a.m. – 11:00 a.m.
Location: Bacchus Room

  • Moderator: Prof. John McGinnis, Northwestern University School of Law

Luncheon Debate: Resolved: Congress's Enumerated Powers Cannot be Increased by Treaty
Co-sponsored by the American Society of International Law
11:00 a.m. – 1:00 p.m.
Location: Rex Room

  • Prof. David Golove, New York University School of Law (invited)
  • Prof. Nicholas Quinn Rosenkranz, Georgetown University Law Center
  • Moderator: Ms. Elizabeth Andersen, Executive Director & Executive Vice President, American Society of International Law

Chief Justice Roberts Accuses Obama Administration Lawyer of Being Disingenuous

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by Publius
Posted November 28, 2012, 9:15 AM

According to Reuters:

U.S. Chief Justice John Roberts publicly dressed down an Obama administration lawyer on Tuesday, demanding that he be upfront about policy changes from one president to another and not hide behind language suggesting something else.

It wasn't the first time some of the nine justices had questioned the consistency of positions taken by the Office of the Solicitor General, which argues cases on the government's behalf. Tuesday's critique accusing the office of effectively camouflaging a new position may be the harshest yet.

Roberts said he objected to the administration's failure in a court filing to acknowledge directly that its secretary of labor had reversed the policy on reimbursements under company medical plans of her predecessor in the Bush administration.

"You cite the prior secretary by name, and then you say, the secretary is now of the (different) view. I found that a little disingenuous," Roberts told Joseph Palmore, an assistant to Solicitor General Donald Verrilli.

"It's not the same person," Roberts said during oral argument at the U.S. Supreme Court on Tuesday.

Such criticism of the solicitor general's office could prompt greater skepticism among justices about the influence of that office, whose guidance the court frequently seeks even where the government is not a party to a lawsuit.

There was no suggestion that the Obama administration was trying to confront the court on a substantive issue.

Rather, what seemed to irk the chief justice, himself a former deputy solicitor general, was that the administration was not forthright about its new legal approach.

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Floyd Abrams Responds to The New York Times’ Editorial Board on Citizens United

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by Publius
Posted November 27, 2012, 5:39 PM

In a letter published in The New York Times, Floyd Abrams, the attorney who represented Senator Mitch McConnell in the Citizens United case, writes:

Justice Alito, Citizens United and the Press” (editorial, Nov. 20), criticizing Justice Samuel A. Alito Jr.’s defense of the Supreme Court’s Citizens United ruling, misapprehends the nature of The Times’s own great victories in cases such as the Pentagon Papers and New York Times v. Sullivan.

You state correctly that in neither case did the court make anything of the fact that The Times is a corporation. But that is the point. In those cases, as in Citizens United, political speech was held protected regardless of who was speaking or what its corporate status was. As Justice Anthony M. Kennedy explained in Citizens United, “the First Amendment protects speech and speaker, and the ideas that flow from each.”

The law at issue in Citizens United permitted The Times to endorse candidates while making it a felony for nonmedia corporations to do so. It made it a crime for a union to distribute your endorsement of President Obama for re-election to its members. It should come as no surprise that the same First Amendment that was held to shield the press in landmark cases of the past now shields such speech as well.

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Harvard Hosts Panel on Legacy of Judge Henry Friendly

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by Publius
Posted November 27, 2012, 3:41 PM

Harvard Law School yesterday announced:

A panel of distinguished judges and scholars gathered at Harvard Law School with author David Dorsen ’59 on Nov. 14 to discuss and celebrate his recent biography, “Henry Friendly: Greatest Judge of His Era.”

At the event, moderated by Professor Carol Steiker ’86—who is the Henry J. Friendly Professor of Law at HLS—Judges Michael Boudin ’64, Pierre Leval ’63, Jon Newman, and Richard Posner ’62, together with HLS Professors Todd Rakoff ’75 and Dan Coquillette ’71, joined Dorsen to share personal memories of Friendly and to discuss his accomplishments and legacy.

Dorsen said that writing the book was a “trial and error” process that involved reading every opinion, article and comment Friendly ever wrote, in addition to voting memos, briefs and other correspondence.

The introduction to the book was written by Posner, who is a judge on the Court of Appeals for the Seventh Circuit and a senior lecturer at the University of Chicago Law School. Posner said he is typically wary of judicial biographies because they are often written so long after the subject’s death that they lack personal recollections. But Dorsen, he said, was able to talk to people who knew Friendly, painting a “vivid picture” of his personality and conveying little-known details about the man, including both his depression and his “freewheeling character.”

"We all knew that Friendly was extraordinarily intelligent and such a great judge, but the biography conveys the fact that he was really a genius," said Posner.

Newman said the book was one of the saddest he had read, in part due to its description of Friendly’s estranged relationship with two of his three children. “This is an absolutely brilliant mind, one of the great contributors to our law, but an incomplete human being,” Newman said. . .

A video of the full panel can be found here.

In November 2005, at the Federalist Society's National Lawyers Convention, Judge Raymond Randolph delivered the Barbara K. Olson Memorial Lecture in which he praised Judge Friendly at length.  His talk began:

It is well-known that Henry J. Friendly was one of the greatest judges in our nation’s history. Along with Holmes and Brandeis and Learned Hand, he was certainly one of the most brilliant. What is not known is that in 1970, three years before Roe v. Wade, Judge Friendly wrote an opinion in the first abortion-rights case ever filed in a federal court. No one knows this because his opinion was never published. I have a copy of the opinion and his papers are now at the Harvard Law School, awaiting indexing.

Tonight I want to make this opinion public for the first time. I hope you will agree with me that Judge Friendly’s draft of 35 years ago

is not only penetrating, but prophetic. I have read my copy many times over the years. Not because our court hears abortion cases. In my 15 years on the D.C. Circuit I have not sat on a single abortion-rights case. I have read and reread my private copy because it embodies such a clear and brilliant message about the proper role of the federal judiciary, because it is timeless, because it is a classic in legal literature.

After I share the opinion with you, I want to compare it with the Supreme Court’s performance, from Roe v. Wade to Lawrence v. Texas. . . .

You can read the full transcript here.

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New SCOTUScast: United States v. Bormes

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by SCOTUScaster
Posted November 27, 2012, 9:44 AM

On November 13, the Supreme Court announced its decision in United States v. Bormes.  The question in the case was whether the Little Tucker Act waives the sovereign immunity of the United States in damages actions under the Fair Credit Reporting Act (FCRA), meaning the United States could be sued by a private individual for violating FCRA and ordered to pay monetary compensation.  A federal appellate court determined that the Little Tucker Act did indeed allow recovery in money damages.

In an opinion delivered by Justice Scalia, the Supreme Court vacated the decision of the appellate court, holding unanimously that the Little Tucker Act does not waive the sovereign immunity of the United States in damages actions under FCRA.  The Court then remanded the case for transfer to a different appellate court, to determine whether FCRA itself contains a waiver of sovereign immunity in damages actions against the government.

To discuss the case, we have Phil Pucillo, who a lecturer in law at Michigan State University College of Law.

Click here to view this article on the source site »

Categories: SCOTUScasts

New Book Podcast: Enlightened Democracy

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by Publius
Posted November 26, 2012, 5:50 PM

With the 2012 presidential election behind us, the unique American presidential election system is fresh in the mind of the public.  Some dismiss the Electoral College as outdated, arguing that the system should be replaced by direct popular vote.  

In Enlightened Democracy: The Case for the Electoral College, author Tara Ross provides an overview of the history of the Electoral College from the Founding Era to the present. She defends the College as an institution and explains how it protects our republic and promotes liberty.  This second edition includes a section discussing the National Popular Vote legislative effort.

Derek Muller, Associate Professor at Pepperdine University School of Law, interviews Ms. Ross about her book.

Click here to view this article on the source site »

A Revolution in Legal Education?: Vermont Law School Cuts Jobs

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by Publius
Posted November 26, 2012, 1:29 PM

The Boston Globe features a story about potentially big news at Vermont Law School:

Vermont Law School is offering voluntary buyouts to staff and may do so soon with faculty as it prepares for what its president and dean says are revolutions about to sweep both the legal profession and higher education.

A sharp drop in the numbers of Americans applying to law schools — triggered by a drop in the number of legal jobs open — already is being felt at the independent law school’s bucolic campus on the south bank of the White River.

The class due to graduate in the spring with juris doctor degrees numbers just over 200. The class that will follow it in 2014 numbers about 150.

‘‘When our enrollment goes down, we have to downsize,’’ Marc Mihaly, the school’s president and dean, said in an interview. ‘‘No matter what, we’re going to see fewer on-campus JD students (traditional law students pursuing juris doctor degrees). And we have to adjust to that because we do not run deficits in this school.’’

The law school is independent; it is not tied to the University of Vermont or another ‘‘mother ship,’’ as Mihaly put it. He argued that can make it more nimble in responding to changes in the marketplace for legal training.

The declines in numbers at the South Royalton campus reflect a national trend. Word has been spreading in recent years that there are fewer job openings for lawyers. . . .

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SCOTUS Revives Christian College’s Challenge to Affordable Care Act

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by Publius
Posted November 26, 2012, 10:29 AM

The AP reports:

The Supreme Court has revived a Christian college's challenge to President Barack Obama's healthcare overhaul, with the acquiescence of the Obama administration.

The court on Monday ordered the federal appeals court in Richmond, Va., to consider the claim by Liberty University in Lynchburg, Va., that Obama's health care law violates the school's religious freedoms.

A federal district judge rejected Liberty's claims, and the 4th U.S. Circuit Court of Appeals ruled that the lawsuit was premature and never dealt with the substance of the school's arguments. The Supreme Court upheld the health care law in June.

The justices used lawsuits filed by 26 states and the National Federation of Independent Business to uphold the health care law by a 5-4 vote, then rejected all other pending appeals, including Liberty's.

The school made a new filing with the court over the summer to argue that its claims should be fully evaluated in light of the high court decision. The administration said it did not oppose Liberty's request.

Liberty is challenging both the requirement that most individuals obtain health insurance or pay a penalty, and a separate provision requiring many employers to offer health insurance to their workers.

This Wednesday, November 28, 2012, FedSoc's Georgetown Student Chapter and the John Templeton Foundation are hosting a debatea on the subject "ACA Challenge II: A Constitutional Debate What Questions are Left for the Court and America?" Details are available here.

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