Legal news. Independent commentary. Federalist Society contributors and independent experts.


Against Conscience Taxes by Ilya Shapiro

Giving Credit Where Credit is Due: Using Tax Reform to Check the Administrative State

J. Kennerly Davis July 19, 2017

Throughout the 2016 campaign and the first months of his administration, President Trump has repeatedly pledged to dramatically reduce the regulatory burdens imposed on American businesses by federal agencies.

One of the more significant actions taken by the President to fulfill this commitment came early in his administration in the form of Executive Order (“EO”) 13771, titled “Reducing Regulation and Controlling Regulatory Costs.”  The EO imposes two restraints on executive departments and agencies (“agencies”) while formally exempting independent regulatory bodies like the Federal Energy Regulatory Commission from its terms.  Both restraints have long been sought by regulatory reformers. [Read More]

State Courts & AGs

Gulf of Mexico beach

State Court Docket Watch: Lynch et al., v. California Coastal Commission

Larry Salzman July 14, 2017

In Lynch et al., v. California Coastal Commission, the California Supreme Court this month raised a procedural hurdle for property owners pursuing challenges to unlawful permit conditions. Property owners who wish to contest a permit condition imposed by a state agency must delay any work on their project until final adjudication of the challenge.

In 2010, Barbara Lynch and Thomas Frick sought a permit to rebuild a seawall that protected their coastal homes from erosion and other natural hazards when a storm destroyed the original bluff protection. The Coastal Commission has a statutory duty to permit seawalls when necessary to protect homes and other existing structures on private property. [Read More]


Regulation and the American Dream

Devon Westhill July 14, 2017

The Regulatory Transparency Project is pleased to announce the release of the trailer video for its new Fourth Branch video series.  The trailer features several experts in regulation – including Senator Dan Sullivan – discussing both benefits and costs of regulation.  We hope you enjoy the “Regulation & the American Dream” trailer and that it inspires you to subscribe to our newsletter at and to follow RTP on social media where you can view the full video when it is released very soon.

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The Fight Over ABA Rule 8.4(g) Proceeds to the States

John J. Park, Jr. July 13, 2017

As has been noted, the American Bar Association has proposed the adoption of a new model Rule 8.4(g) that would make it an ethical violation to harass or discriminate against another on the basis of “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” I have previously observed that the ABA’s view of free speech is incoherent and that the Rule’s reach is wide-ranging. [Read More]


Occupational Licensing and the American Dream

More than a quarter of the American labor force requires a state license to work, a five-fold increase since the 1950s. Occupational licensing imposes restrictions on competition in every reach of the modern economy — with pernicious effects.

According to a report issued by President Obama’s Council of Economic Advisors, such laws have been estimated to cost millions of jobs nationwide and raise consumer expenses by over one hundred billion dollars. The impact is felt most by those who can least afford it. For instance, unnecessary and expensive educational requirements prevent upward mobility, and poor consumers can find necessities from haircuts to plumbing out of reach. What’s more, the patchwork of state licensing regimes poses a significant barrier to practicing one’s occupation across state lines, which can be especially costly to military families. [Read More]



A Question for Independence Day

J. Kennerly Davis July 03, 2017

As the Fourth of July fast approaches and we consider the many alternatives available for recreation and entertainment, it is fitting that we also ponder an important question tied closely to the deeper meaning of the day. 

It is a deceptively simple question, but one that encompasses the essence of every significant policy issue that confronts us as a nation. And the answer to the question will determine whether we survive as a free people.

The question to ponder on Independence Day is, simply: Where do rights come from? [Read More]


Exceptionalism by Michael B Mukasey

Independence Day 2017

Randolph J. May July 03, 2017

Lincoln’s Gettysburg Address, without question one of the most powerful, eloquent speeches in the American canon, consists of only 272 words and was delivered in less than three minutes. 

Compare Lincoln’s far less well known, but nevertheless eloquent address in Peoria, Illinois, on October 16, 1854. The Peoria Address, as it came to be known, consists of over 17,000 words and took Lincoln three hours and ten minutes to deliver. 

The Peoria Address was a response to passage of the Kansas-Nebraska Act, which voided a restriction on the extension of slavery that had been part of the Missouri Compromise of 1820. The speech marked Lincoln’s reentry into politics and thrust him into the national debate over slavery. 

For present purposes, the Peoria Address is relevant to understanding the meaning of Independence Day. Indeed, Lincoln grounded his extended argument against slavery firmly in the philosophy and principles expounded in the Founders’ Declaration of 1776, not the Constitution of 1787.  [Read More]


State Court Docket Watch News Clips: 9/22/2015

The Georgia Supreme Court Delivers a Victory for School Choice

John J. Park, Jr. June 27, 2017

On Monday, June 26, while the legal world was watching for decisions from the U.S. Supreme Court and for a possible retirement announcement, the Supreme Court of Georgia unanimously affirmed the rejection of a challenge to Georgia’s Opportunity Scholarship program.[1] That program allows businesses and individuals who contribute to not-for-profit school scholarship organizations to receive a dollar-for-dollar tax credit of up to $1,000 for individuals, $2,500 for married taxpayers, and the amount contributed or 75% of a corporation’s income tax liability, whichever is less. The organizations then distribute the donated funds to schools, some of which are religious, to pay tuition on behalf of eligible students. The program is very popular as its $56 million annual cap is quickly subscribed.

The program is also popular with the parents and children who are the beneficiaries of the scholarships and the related educational opportunity. Four parents, represented by the Institute of Justice with assistance from Strickland, Brockington Lewis LLP as local counsel, intervened to help the State defend the program. [Read More]


When Falsely Shouting "Crime" Pays by Francis J. Minton

Fixing How FDA Regulates Diagnostic Lab Tests

Roger Klein June 27, 2017

Diagnostic laboratory tests play a central role in the implementation of precision medicine. It is essential that FDA regulation strike the right balance between protection of patient safety, and encouragement of advancement and innovation in testing. Read an original approach to FDA regulation that Professor David Hyman and I published in Investor’s Business Daily.

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