In the last year, the Department of Justice lost three major cases against Fed Ex, Vascular Solutions and Warner Chilcott. Critics argue that each case was an example of over-enforcement by DOJ and overcriminalization by Congress. Proponents assert that it is a critical role of government to police and dissuade bad acts by private citizens and corporations. Are there too many federal agencies, giving prosecutors too much power over individuals and corporations? Is it good policy to prosecute individual employees of a corporation, as suggested in the Yates memorandum? Panelists, including lawyers in each of these three cases, will discuss the limits of federal criminal law and prosecutions.
Streaming live from the National Press Club in Washington, DC at approximately 12:30.
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Most discussions about the Supreme Court’s 8-0 decision in Samsung Electronics, Ltd. v. Apple Inc. have focused and will continue to focus on the decision’s implications for patent law and innovation. The decision also highlights the impact that Justice Scalia has had on the Supreme Court specifically and on legal thinking more generally. Indeed, although the decision in the case does not mention Justice Scalia, its analysis is, in many ways, a tribute to him. [Read More]
The R Street Institute has details on a recent House Oversight and Government Reform Committee hearing:
The House Oversight and Government Reform, Subcommittee on Government Operations and
Healthcare, Benefits, and Administrative Rules convened a hearing on the power of the purse on December 1, 2016. It is an important topic.
The power of the purse is a fundamental legislative authority. It is an authority that aims to limit executive power, encourage agency accountability to elected officials, and curb corruption.
In a recent ad,the State Bar of Texas announced that it is accepting applications for an open position on its Board of Directors. As required by Texas law, however, the State Bar is refusing to consider any attorney who is not “female, African-American, Hispanic-American, Native American, or Asian-American.”
On Monday, Greg Gegenheimer, a family-law attorney in Austin, filed a civil-rights suit against the State Bar in the Western District of Texas. Mr. Gegenheimer, a white male, alleges that the State Bar is violating the Equal Protection Clause by excluding him from consideration for the open position based on his race and sex. Mr. Gegenheimer’s lawsuit is being supported by the Project on Fair Representation, the organization that successfully challenged the constitutionality of Section 4(b) of the Voting Rights Act in Shelby County v. Holder.
A frequent complaint is that the Federal government pays more for similar products than do commercial enterprises. The election of Donald Trump could reset the clock for the Federal procurement changes that have arisen in the past 8 years and help bring down prices charged to Federal customers. Most prominently, Mr. Trump could begin by revising or rescinding the executive orders on which myriad new contractor obligations are based. Additionally, Mr. Trump could push for legislation to narrow the False Claims Act, resetting it to its original intent as a vehicle for punishing contractors who submit false claims for payment, rather than as a general-purpose fraud or contract compliance tool. Either of these efforts would decrease the cost to the Federal government relative to what commercial customers pay for similar goods. [Read More]
This afternoon the Supreme Court issued an order granting certiorari in seven cases, three of which were consolidated:
(1) Howell v. Howell: Whether the Uniformed Services Former Spouses’ Protection Act pre-empts a state court’s order directing a veteran to indemnify a former spouse for a reduction in the former spouse’s portion of the veteran’s military retirement pay, when that reduction results from the veteran’s post-divorce waiver of retirement pay in order to receive compensation for a service-connected disability.
(2) Impression Products v. Lexmark Int'l: (1) Whether a “conditional sale” that transfers title to the patented item while specifying post-sale restrictions on the article's use or resale avoids application of the patent-exhaustion doctrine and therefore permits the enforcement of such post-sale restrictions through the patent law’s infringement remedy; and (2) whether, in light of this court’s holding in Kirtsaeng v. John Wiley & Sons, Inc. that the common-law doctrine barring restraints on alienation that is the basis of exhaustion doctrine “makes no geographical distinctions,” a sale of a patented article – authorized by the U.S. patentee – that takes place outside the United States exhausts the U.S. patent rights in that article.
(3-5) The ERISA church-plan exemption cases (consolidated, one hour for oral argument): Whether the Employee Retirement Income Security Act of 1974's church-plan exemption applies so long as a pension plan is maintained by an otherwise-qualifying church-affiliated organization, or whether the exemption applies only if, in addition, a church initially established the plan.
(6) Water Splash v. Menon: Whether the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters authorizes service of process by mail.
(7) Los Angeles County v. Mendez: (grant limited to questions 1 and 3): (1) Whether the U.S. Court of Appeals for the 9th Circuit's “provocation” rule should be barred as it conflicts with Graham v. Connor regarding the manner in which a claim of excessive force against a police officer should be determined in an action brought under 42 U.S.C. § 1983 for a violation of a plaintiff's Fourth Amendment rights, and has been rejected by other courts of appeals; ... and (3) whether, in an action brought under Section 1983, an incident giving rise to a reasonable use of force is an intervening, superseding event which breaks the chain of causation from a prior, unlawful entry in violation of the Fourth Amendment.
On November 8th, voters approved recreational marijuana initiatives in California, Massachusetts, Maine, and Nevada, and medicinal marijuana initiatives in Florida, North Dakota, and Arkansas (Montanans voted to roll back already existing medical marijuana restrictions). 28 states and the District of Columbia have now passed laws legalizing the medicinal and/or recreational use of marijuana.
Meanwhile, Americans set a record in each of the last 18 months for the number of National Instant Criminal Background Check System firearm background checks processed, which is the most accurate indicator of the number of firearm sales (because nearly all sales by federally licensed firearm dealers require a background check, as do many private sales). This year almost certainly will surpass 2015 as the year with the most firearm background checks ever.
Thus, legal marijuana use and firearm ownership are likely both at all-time highs. However, since federal law (18 U.S.C. § 922(g)(3)) makes it a felony for an “unlawful user of … any controlled substance” to “possess … any firearm,” and since marijuana is classified as a Schedule I controlled substance, it is a felony for a user of marijuana to possess a firearm. [Read More]
Right to Work laws prohibit requirements that workers pay union dues as a condition of employment. Section 14(b) of the National Labor Relations Act authorizes states to enact such laws. The U.S. Supreme Court has twice upheld the constitutionality of state Right to Work laws. Davenport v. Washington Educ. Ass’n, 551 U.S. 177, 184-85 (2007) (public sector); Lincoln Federal Labor Union No. 19129 v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949) (private sector). In the last four years four states—Indiana, Michigan, Wisconsin and West Virginia—have enacted new Right to Work laws, bringing to twenty-six the total number of states having such laws.Finding themselves on the losing side of recent legislative battles over Right to Work, unions have turned to the courts, challenging all four new Right to Work laws, plus Idaho’s, as unconstitutional on various grounds not explicitly addressed in the Supreme Court’s decisions. However, the litigation has ended in Indiana and Michigan with the challenged laws upheld, and the challenged laws continue to be enforceable in the other three states in which the litigation is still pending. Brief summaries of the cases are available.
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Raymond J. LaJeunesse, Jr. is Vice President & Legal Director at the National Right to Work Legal Defense Foundation, Inc.
The Federalist Society Blog is pleased to host live streams of ten National Lawyers Convention panels and addresses this week, starting with Thursday morning's showcase panel. Check back here if you can't make it to the Convention, and share!