- “There is nothing in the Constitution that …even hints that the president’s power expands because Congress won’t pass the legislation he advocates.” [David Bernstein interview with Josh Blackman about Bernstein’s new book “Lawless,” on Obama administration vs. constitutional limits more from Bernstein on book]
- “Will the Supreme Court End Affirmative Action? A Preview of Fisher v. University of Texas at Austin on the Eve of Oral Argument” [Cato event Dec. 7 with Andrew Grossman, John Paul Schnapper-Casteras, Gail Heriot, Richard Lempert, and Wallace Hall, moderated by Ilya Shapiro]
- Theme of this year’s Federalist Society lawyers’ convention was Congress, videos of related panels [originalist views of Congress, Congressional dysfunction, deference and delegation, prospects for getting legislative branch to reclaim lawmaking power]
- Certiorari petition asks SCOTUS to review dischargeability of law school debts in bankruptcy [BNA; Tetzlaff v. Educ. Credit Mgmt. Corp.]
- At Cato’s Constitution Day, panels looked back at an eventful SCOTUS term [Cato Policy Report]
- Common law vs. statutes: Richard Epstein on Spokeo v. Robins oral argument [Hoover] Must plaintiffs show they actually suffered harm? [Daniel Fisher]
- No, the Constitution doesn’t let feds cancel Redskins trademark as offensive [Kristian Stout, Truth on the Market; Ilya Shapiro]
- SCOTUS to hear case of Susan B. Anthony List v. Driehaus, First Amendment challenge to state laws regulating truth of political speech [IJ/Cato amicus cert brief]
- Groups of law professors file amicus briefs in Halliburton Co. v. Erica P. John Fund, Inc. arguing that retreat from “fraud on the market” theory is consistent with modern scholarship on capital market efficiency [John Elwood] and sound statutory construction [Elwood, Bainbridge]
- Behind the Michigan affirmative action plan in Schuette, including colorful background of litigant BAMN (“By Any Means Necessary”) [Gail Heriot, Federalist Society “Engage”]
- Court dismisses Mulhall v. UNITE HERE (challenge to employer cooperation agreement with union as “thing of value”) as improvidently granted [Jack Goldsmith, On Labor, earlier]
- Affordable Care Act saga has taken toll on rule of law [Timothy and Christina Sandefur, Regulation]
- Lol-worthy new Twitter account, @clickbaitSCOTUS, with content like “The nine words no appellate advocate wants to read” [re: Madigan v. Levin]
- Drug War vs. Constitution at Supreme Court, 1928: Drug War won by only one vote and you might not predict who wrote the most impassioned dissent [my Cato post]
- “That Thing They Said They’re Not Doing? They’re Totally Doing.” [Daily Show with Jon Stewart] “Exactly What the State Says to Deceive You About Surveillance” [Conor Friedersdorf]
- “Warrantless Cellphone ‘Tower Dumps’ Becoming Go-To Tool For Law Enforcement” [Tim Cushing, TechDirt; Ellen Nakashima, Washington Post; David Kravets, Wired; USA Today (local law enforcement using, not just federal)]
- Google, Apple, Microsoft, Facebook, Twitter, Yahoo, AOL, LinkedIn, but telecoms absent: “U.S. Tech Industry Calls for Surveillance Reform” [Corporate Counsel, EFF, Marvin Ammori/USA Today]
- New Federalist Society symposium on NSA/FISA surveillance and bulk data collection includes names like Randy Barnett, Jim Harper, Jeremy Rabkin, Stewart Baker, Grover Joseph Rees [Engage, Randy Barnett]
- Nowadays “law enforcement can feel free to admit their traffic stops are pretextual” Thanks, Drug War! [Popehat] “Sobriety Checkpoints Paved Path to NSA Email Spying” [Wired]
- FATCA, the intrusive overseas tax enforcement law, isn’t couched in public controversy as a federal data-snooping issue, but it should be [Radley Balko, McClatchy]
Josh Blackman has a summary, including the Justice’s memories of Charles Reich’s constitutional law class at Yale, his commentaries on cases from the last Supreme Court term, and a proposal to carve the faces of Federalist Society founders Lee Liberman, David McIntosh, Peter Keisler, and Steve Calabresi on Mount Rushmore.
P.S. And on the Citizens United decision [BLT]:
Alito said arguments can be made for overturning Citizens United, but not the popular one that boils down to one line: Corporations shouldn’t get free speech rights like a person.
“It is pithy, it fits on a bumper sticker, and in fact a variety of bumper stickers are available,” Alito told a crowd of about 1,400 at The Federalist Society’s annual dinner. He cited two: “End Corporate Personhood,” and “Life does not begin at incorporation.”
Then Alito pointed out the same people do not question the First Amendment rights of media corporations in cases like The New York Times Co. v. Sullivan, the Pentagon papers case. If corporations did not have free speech rights, newspapers would lose such cases, he said.
I much enjoyed my trip there last week, sponsored by the Federalist Society chapter and with Prof. Jacqueline Fox providing a spirited counterpoint to my remarks on Schools for Misrule. The school has posted a Facebook photo album of the event.
I’ll be discussing Schools for Misrule today at Syracuse University College of Law, tomorrow in Cleveland at Cleveland-Marshall College of Law at 4 p.m., and Thursday in Pittsburgh at noon at Pitt Law with critical commentary from Prof. Peter Oh. Federalist Society student chapters are sponsoring the events, which are open to the public. Come out and introduce yourself!
Why not book me to speak at your own city or campus? You can contact me directly at editor – at – overlawyered – dot – com, call the Cato Institute at 202-789-5269, or, if you’re a Federalist Society chapter, through the Society’s home office.
- Talking back to the “malpractice litigation is no big deal, docs should grin and bear it” theorists [David Sack, ACP via White Coat] “Worst states for medical malpractice risk” [White Coat]
- Jury awards $25 million against hospital that didn’t file abuse report after boy came in with broken wrist [Fayetteville, N.C. Observer]
- “Doctors Question Disability Decisions as Agency Moves to Speed Up Process” [WSJ via Walter Russell Mead]
- New “Federalist Society equivalents” in medicine (Benjamin Rush Society), business, foreign affairs [John J. Miller, Philanthropy]
- Fieger wins $144 million verdict blaming hospital for newborn’s cerebral palsy [suburban Detroit Tribune]
- Feds force birth control coverage on Catholic organizations, and free association suffers [Roger Pilon, Cato]
- Phone call from doc to patient’s home did not establish subsequent jurisdiction to sue there [Madison County Record] NY steps up program to streamline courts’ handling of med-mal claims [WSJ]
I’ll be there today, so feel free to step up and say hello if you’re a reader.
Just out: one of the most serious and wide-ranging podcasts yet on my new book, Schools for Misrule: Legal Academia and an Overlawyered America. I’m interviewed by James Haynes of the Society’s Professional Responsibility & Legal Education Practice Group Executive Committee and Baltimore Federalist Society Lawyers Chapter. It’s 53:25 minutes in length and you can listen here. Thanks also to the 100+ Facebook users so far who’ve “liked” the podcast.
The Federalist Society has posted numerous videos from its recent National Lawyers’ Convention, including sessions on the aggressive regulatory stance of today’s Environmental Protection Agency, the constitutionality of Obamacare, anonymity and the First Amendment in media and campaign-regulation law, NYU’s Richard Epstein debating Yale’s Bill Eskridge on the court battle over California’s Prop 8, recusal and campaign rules for judges, Dodd-Frank, and the Christian Legal Society v. Martinez case on accreditation of student groups, among other topics. And civil procedure/Iqbal-Twombly buffs may be interested in a luncheon panel held just yesterday in D.C. (I was in the audience) in which four law professors (Don Elliott of Yale, Martin Redish and Ronald Allen of Northwestern, and Rick Esenberg of Marquette) outlined ideas for reforming the Federal Rules of Civil Procedure to reduce discovery costs and improve screening of cases in the earliest stages of filing.
The video above is of the Society’s 10th annual Barbara Olson Memorial Lecture, in which Second Circuit Chief Judge Dennis Jacobs provocatively criticizes legal academia and other precincts of influential legal thinking for misunderstanding the role of the military and its relation to the law.