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by Publius
Posted August 14, 2014, 1:39 PM

You can support The Federalist Society with your back to school shopping--at no additional cost to you!

Just shop through AmazonSmile and they'll donate a small percent to us.

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Categories: Federalist Society

Political Bias in Legal Scholarship

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by Publius
Posted August 14, 2014, 8:13 AM

University of Chicago Law Library - Photo by Matthew G. BisanzA new study from the University of Chicago concludes:

At a statistically significant level, law professors at elite law schools who make donations to Democratic political candidates write liberal scholarship, and law professors who make donations to Republican political candidates write conservative scholarship. These findings raise questions about standards of objectivity in legal scholarship.

Josh Blackman comments on some of the nuances of the study:

First, the authors had a tough time finding enough law professors at the top 14 schools who donated more money to Republicans.

In the initial sample of 140 professors, however, only 8 had donated more money to Republicans than Democrats (which is our principle measure of ideology). . . .

Second, the authors broke down these professors by subject matter they wrote in. My initial thought, was, how many of those 24 “Republican” Profs teach constitutional law. The authors note (p. 21) that virtually none of them teach ConLaw . . . .

Third, the authors confirm what seems to be the conventional wisdom–many closeted conservatives get ahead by stifling their ideology, or writing in field where ideology isn’t as important. . . .

Fourth, for the small number of “Republican” law professors, there sure were a lot of “Conservative” articles written. The article found:

Of the 780 articles in our dataset, 512 are liberal and 237 are conservative.

The authors don’t draw any conclusions here, but it would seem this small cadre of conservative law professors is quite productive. . . .

Fifth, the authors find that  “net Democratic donors write highly ideological articles, whereas net Republican donors write articles that are distributed widely across the spectrum.” . . .

Read Mr. Blackman's full analysis on his blog.

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Should You Be Able to Sue a Think Tank You Don’t Agree With?

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by Publius
Posted August 13, 2014, 8:33 AM

Photographer: AgnosticPreachersKid via Wikimedia CommonsIlya Shapiro, on the Cato at Liberty blog, comments:

In response to some scathing criticism of his methodologies and an allegation of scientific misconduct, the author of the infamous “hockey stick” models of global warming [Dr. Michael Mann] has taken the global climate change debate to a record low by suing the Competitive Enterprise Institute, National Review, and two individual commentators. The good Dr. Mann claims that some blogposts alleging his work to be “fraudulent” and “intellectually bogus” were libelous. . . .

The D.C. trial court rejected the defendants’ motion to dismiss this lawsuit, holding that their criticism could be taken as a provably false assertion of fact because the EPA, among other bodies, have approved of Mann’s methodologies. In essence, the court seems to cite a consensus as a means of censoring a minority view. The defendants appealed to the D.C. Court of Appeals (the highest court in the District of Columbia).

Cato has now filed a brief, joined by three other think tanks, in which we urge the court to stay out of the business of refereeing scientific debates. . . .

We argue that the First Amendment demands that failing to leave room for the marketplace of ideas to operate stifles academic and scientific progress, and that judges are ill-suited to officiate policy disputes – as history has shown time and again. The lower court clearly got it wrong here – and there are numerous cases where courts have more judiciously treated similarly harsh assertions for what they really are: expressions of disagreement on public policy that, even if hyperbolic, are among the forms of speech most deserving of constitutional protection. . . .

Categories: External Articles

2014 Graduates: Sign Up for a Free Year of Membership in the Lawyers Division

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by Publius
Posted August 12, 2014, 2:08 PM

2014 Graduates: Sign Up for a Free Year of Membership in the Lawyers Division

As you are about to finish law school and embark on a new journey, we would like to remain an active part of your professional career and continue to be your link to the legal and public policy worlds.

As a student member about to graduate, we are offering you 1 year of free membership in the Lawyers Division and membership in two Practice Groups. You will receive a number of benefits with your lawyer membership, including discounts to chapter events, CLE credit, and the opportunity to closely network with prominent policy officials, judges, scholars, and business leaders.

Categories: Federalist Society

Governor Jindal Seeks Injunction to Stop Use of Common Core Tests

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by Publius
Posted August 11, 2014, 3:15 PM

The Times-Picayune reports:

In the latest salvo in the ongoing fight over Louisiana's use of the Common Core education standards, Gov. Bobby Jindal has amended his lawsuit and is now seeking a court injunction to immediately stop the state from using the tests tied to Common Core.

The governor's office said in a release that the injunction is needed "because of the imminent risk of irreparable harm created by the unlawful exercise of federal control of education in Louisiana."

The injunction would bar the state's Board of Elementary and Secondary Education from implementing any assessment program developed by the Partnership for the Assessment of Readiness for College and Careers, known as PARCC. . . .

In addition to adding the request for the injunction, the lawsuit claims the PARCC agreement violates federal law.

Laws including the General Education Provisions Act and the Elementary and Secondary Education Act ban the federal government from controlling school curriculum and instructional material, said attorney Jimmy Faircloth, who is representing the Jindal administration in the case. . . .

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District Court: NCAA Rules Violate Antitrust Laws

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by Publius
Posted August 11, 2014, 8:38 AM

District Court: NCAA Rules Violate Antitrust LawsUSA Today reports:

A federal judge ruled Friday that the NCAA's limits on what major college football and men's basketball players can receive for playing sports "unreasonably restrain trade" in violation of antitrust laws.

U.S. District Judge Claudia Wilken, in a 99-page ruling in favor of a group of plaintiffs led by former UCLA basketball player Ed O'Bannon, issued an injunction that will prevent the NCAA the "from enforcing any rules or bylaws that would prohibit its member schools and conferences from offering their FBS football or Division I basketball recruits a limited share of the revenues generated from the use of their names, images, and likenesses in addition to a full grant-in-aid." . . .

The ruling also will allow schools and conferences to deposit money in trust for football and men's basketball players that will become payable when they leave school or their eligibility expires. Under this setup:

  • The NCAA will be allowed to set a cap on the amount of money that may be held in trust, but that cap cannot be less than $5,000 in 2014 dollars for every year the athletes remain academically eligible.
  • Schools will be allowed to offer less than the NCAA maximum amount if they so choose, but they cannot unlawfully conspire with each other in setting the amounts they offer.
  • The NCAA will be allowed have rules that prevent the athletes from using the money being held in trust for them to obtain other financial benefits while they are in school.
  • The NCAA also will be able to have rules that prevent schools from offering different amounts of deferred money to athletes who are in the same recruiting class on the same team.
  • The amounts that schools decide to place in trust for the athletes may vary from year to year. . . .

The NCAA plans to appeal.

Categories: External Articles

Washington Post: Congress Gridlock “Doesn’t Grant the President License to Tear up the Constitution”

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by Publius
Posted August 08, 2014, 12:02 PM

In a recent editorial, The Washington Post took a strong stance over executive action on immigration. They comment:

Obstinate, hopelessly partisan and incapable of problem-solving, Congress is a mess. But that doesn’t grant the president license to tear up the Constitution. As Mr. Obama himself said last fall: “If, in fact, I could solve all these problems without passing laws in Congress, then I would do so. But we’re also a nation of laws.” To act on his own, the president said, would violate those laws.

Mr. Obama now seems to be jettisoning that stance in the name of rallying his political base. He is considering extending temporary protection from deportation to millions of illegal immigrants, including the parents of U.S.-born children and others who have lived in the United States for years. Conceivably, this would give Democrats a political boost in 2016. Just as conceivably, it would trigger a constitutional showdown with congressional Republicans, who could make a cogent argument that Mr. Obama had overstepped his authority.

The president should think twice. . . .

The right response to the collapse of the U.S. immigration system is for Congress to fix the law. The House had a vehicle to do just that by taking up the legislation passed by the Senate last year. But it does not follow that Congress can be ignored based on its failure to act. . . .

Categories: External Articles

Why the Voter ID Debate Goes Nowhere

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by Publius
Posted August 08, 2014, 8:45 AM

Why the Voter ID Debate Goes NowhereTamara Tabo at Above the Law has some interesting thoughts about voter ID laws. What would you propose as a solution?

The Wisconsin Supreme Court recently issued two rulings upholding 2011 Wisconsin Act 23, a state law requiring voters to present photo identification at polling places. The court ruled that mandating ID does not place a substantial burden on voters, nor does it create an unreasonable regulation on elections. The Seventh Circuit is still considering a challenge to the same law, however. In April, Judge Lynn Adelman of the U.S. District Court for the Eastern District of Wisconsin ruled that the law unduly burdens some voters, particularly low-income ones, and violates the Voting Rights Act. This week, Wisconsin Attorney General J.B. Van Hollen filed motion to lift the injunction created by Judge Adelman’s earlier ruling. . . .

Both sides offer up horror stories. True the Vote trumpets allegations of misconduct on one side, while the NAACP insists that election officials continue to suppress minority votes on the other. Mostly the discourse drops to the level of anecdote. Too often, the deciding factor reduces to which seems more plausible to you personally — that people who shouldn’t vote do, or that people who should don’t?

Where does the conversation go from there? . . .

At the bottom of the criticisms, an important question remains: how unreasonable is it for voters, even those with limited means, to obtain photo identification? In an age when so many routine daily tasks require a driver’s license or its equivalent, asking for ID at the polls just doesn’t seem that onerous to many Americans, myself included.

Functionally, the benefit of these laws may be minimal. Likewise, the burdens look slight. Much of the fervor on each side is grounded more in symbolic value than in practical effect. . . .

Categories: External Articles

New Post-Decision SCOTUScast: Loughrin v. United States

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by SCOTUScaster
Posted August 08, 2014, 8:06 AM

On June 23, 2014, the Supreme Court issued its decision in Loughrin v. United States. The question in this case was whether the government must prove that a defendant intended to defraud a bank and expose it to risk of loss in every prosecution under 18 U.S.C. § 1344, or whether the government need only prove that a defendant knowingly attempted to defraud someone “to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises.”

Justice Kagan delivered the opinion of the Court, which held that the government does not need to prove that a defendant charged with violating 18 U. S. C.§1344(2) intended to defraud a bank. The judgment of the Tenth Circuit was affirmed. Justice Kagan's opinion was joined in full by the Chief and Justices Kennedy, Ginsburg, Breyer, and Sotomayor. Justices Scalia and Thomas also joined as to Parts I and II, Part III–A except the last paragraph, and the last footnote of Part III–B. In addition, Justice Scalia, joined by Justice Thomas, concurred in part and in the judgment.  Justice Alito filed a separate concurrence in part and in the judgment.

To discuss the case, we have Todd Braunstein, who is counsel at the law firm WilmerHale.

Click here to view this article on the source site »

Categories: SCOTUScasts

IRS to Monitor Churches for Electioneering

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by Publius
Posted August 07, 2014, 8:28 AM

IRS to Monitor Churches for ElectioneeringThe National Review Online comments:

According to a June 27 IRS letter to the Justice Department, 99 churches merit “high priority examination” for allegedly illegal electioneering activities. The letter was sent in reference to a now-dismissed lawsuit filed by the atheist group known as the Freedom from Religion Foundation (FFRF). The suit originally was a rather broad one, demanding not only that the IRS enforce prohibitions against churches’ endorsing candidates specifically, but also that churches should be “required to file” what it described as “detailed annual information” that would force them (if they are like other nonprofits) to “expend substantial time and resources.”

With the end of the suit, those filings presumably will not be required (though a second suit, on just that subject, remains open). But IRS’s monitoring of alleged electioneering activities could still be quite onerous. . . .

Indeed, if the IRS actually enforced FFRF’s suggested standards, it would be downright frightening. It would mean that not only that pastors could  be forbidden from candidate endorsements but also that they could not even inform their congregants about the real-world tenets of their faith. The traditional bright line between explicit electioneering and the sorts of things FFRF’s letter wants stopped exists for good reason: Freedom of conscience, and of faith practices, is the founding freedom of this nation. If government dares to forbid preachers from mere religious instruction — while the preachers still leave it up to their flocks to apply that instruction according to their understanding and their consciences — then there is nothing to stop government from infringing on other pulpit pronouncements with ever-more-intrusive regulatory strictures. . . .

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New Post-Decision SCOTUScast: United States v. Clarke

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by SCOTUScaster
Posted August 06, 2014, 12:42 PM

On June 19, 2014, the Supreme Court issued its opinion in United States v. Clarke. The question in this case was whether an unsupported allegation that the Internal Revenue Service (IRS) issued a summons for an improper purpose entitles an opponent of the summons to an evidentiary hearing to question IRS officials about their reasons for issuing the summons.

Justice Kagan delivered the opinion for a unanimous Court, which held that an allegation of improper purpose does not entitle a taxpayer to examine IRS officials. Rather, the taxpayer may do so when he can point to “specific facts or circumstances plausibly raising an inference of bad faith."  The contrary decision of the Eleventh Circuit was vacated and the case remanded for further proceedings.

To discuss the case, we have Kristin Gutting, an associate professor of law at the Charleston School of Law.

Click here to view this article on the source site »

Categories: SCOTUScasts

Utah Asks Supreme Court to Hear Gay Marriage Case

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by Publius
Posted August 06, 2014, 9:00 AM

Utah Asks Supreme Court to Hear Gay Marriage CaseReuters reports:

Utah officials on Tuesday filed court papers asking the U.S. Supreme Court to uphold the state's ban on gay marriage.

If the court agrees to hear Utah's case, it could lead to a ruling of national scope on the legality of gay marriage bans.

The nine-member court will not decide whether to hear the case until the fall. If it does take the case, a ruling would be expected by the end of June 2015. . . .

In June, the 10th U.S. Circuit Court of Appeals in Denver upheld a lower court ruling that struck down Utah's ban. The court reached the same result in a case concerning Oklahoma's ban. The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals struck down Virginia's ban in July.

Categories: External Articles

Alabama’s Requirement for Abortion Clinic Doctors Ruled Unconstitutional

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by Publius
Posted August 05, 2014, 8:22 AM

Alabama's Requirement for Abortion Clinic Doctors Ruled UnconstitutionalThe New York Times reports:

A federal judge on Monday rejected as unconstitutional an Alabama law requiring doctors at abortion clinics to have admitting privileges at local hospitals.

The requirement, adopted by the legislature in 2013, would have forced three of Alabama’s five abortion clinics to close, severely restricting access to abortions while not providing significant medical benefits, United States District Judge Myron H. Thompson wrote in a 172-page decision.

The ruling adds to a swirl of contradictory court decisions on the requirement of admitting privileges, especially in the South where abortion opponents have promoted such laws in the name of patient safety. Advocates of abortion rights call the requirement a transparent effort to close clinics. . . .

Categories: External Articles

Lane v. Franks - Post-Decision SCOTUScast

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by SCOTUScaster
Posted August 04, 2014, 12:25 PM

On June 19, 2014, the Supreme Court issued its opinion in Lane v. Franks. The question in this case was twofold: First, whether the government is categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities; and second, whether qualified immunity precludes a claim for damages in such an action.

Justice Sotomayor delivered the opinion for a unanimous Court, which held that Lane's truthful sworn testimony at a state representative's criminal trials was speech as a citizen on a matter of public concern, and therefore protected.  Even though the testimony was protected, however, Lane's claim against his superior Franks in Franks' individual capacity must be dismissed on grounds of qualified immunity.  The claims against Franks in his official capacity were remanded for further proceedings. Justice Thomas filed a concurring opinion, joined by Justices Scalia and Alito. The opinion of the Eleventh Circuit was affirmed in part and reversed in part.

To discuss the case, we have Josh Blackman, who is an Assistant Professor of Law at South Texas College of Law.

Click here to view this article on the source site »

Categories: SCOTUScasts

ACA Health Care Subsidies Issue Rushed to Court

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by Publius
Posted August 04, 2014, 8:33 AM

At The Volokh Conspiracy Jonathan H. Adler reports:

The plaintiffs in King v. Burwell who are challenging the lawfulness of an IRS rule purporting to authorize tax credits in federally established health insurance exchanges filed a petition for certiorari with the Supreme Court, seeking review of the U.S. Court of Appeals for the Fourth Circuit’s decision in favor of the government.

The federal government filed a petition for en banc rehearing in Halbig v. Burwell in the U.S. Court of Appeals for the D.C. Circuit, hoping to overturn the three-judge panel’s decision invalidating the IRS rule. This petition may have been filed a day later, but it is likely to be acted upon before the Supreme Court considers the King cert petition this fall. . . .

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