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


Justice Scalia giving the opening remarks at the 2014 National Lawyers Convention.

Why Scalia Was Wrong About Chevron

Evan Bernick March 23, 2017

Not since the New Deal era has the scope and reach of the modern administrative state received so much public attention. It is thus unsurprising that the first Supreme Court case mentioned by Senator Diane Feinstein on the first day of Judge Neil Gorsuch’s confirmation hearings did not involve familiar hot-button issues like gun control, abortion, or campaign finance. That case was Chevron USA, Inc. v. National Resources Defense Council, Inc., a 1984 decision associated with a doctrine that requires judges to defer to federal agencies’ interpretations of statutes that they are charged with administering. [Read More]


Grilling Gorsuch and fearing the Federalist Society

Timothy Courtney March 23, 2017

Jonathan Adler writes for the Volokh Conspiracy:

This week, Senate Democrats have poked and prodded Judge Neil Gorsuch in an effort to derail his confirmation to the U.S. Supreme Court. They’ve asked about his judicial opinions, his writings, his work for the George W. Bush administration, and even his dissertation adviser. Throughout it all, Gorsuch has been largely unflappable, revealing that he is precisely what all who know him already knew: He’s an intelligent and conscientious, mainstream conservative judge who cares deeply about the judicial craft.

Not content to let the Gorsuch nomination sail through, some have sought to suggest he’s unfit because of who nominated him or who supports him. Sen. Sheldon Whitehouse (D-R.I.), for one, spent time challenging Gorsuch to disavow the “dark money” supporting his confirmation. Others have expressed dismay that Gorsuch is a member of the Federalist Society and was recommended to the president by the Society’s executive vice president, Leonard Leo, who has taken a leave from the organization to work on the nomination.

Read the full article


Accreditation Overreach Part 2: Forcing Affirmative Action on Colleges and Universities

Racial Impact Statement Laws in New Jersey and Elsewhere

James Scanlan March 20, 2017

On February 27, 2017, the New Jersey Assembly Law and Public Safety Committee reported favorably on Senate Bill No. 677 (with amendments). The original bill, passed by the New Jersey Senate in June 2016, required racial and ethnic impact statements for any legislative measure that affects pretrial detention, sentencing, probation, or parole policies concerning adults or children. The version recently reported out of committee somewhat expanded these requirements.

Racial impact statement laws have previously been enacted in Connecticut, Iowa, and Oregon, and similar legislation has recently been introduced by lawmakers in Arkansas, Florida, Mississippi, and Wisconsin. [Read More]


Does Title II of the Civil Rights Act prohibit racially disparate impacts?

Joshua Thompson March 08, 2017

Our civil rights laws are designed to prohibit discrimination on the basis of certain traits. For example, Title VII of the Civil Rights Act of 1964 prohibits racial discrimination in employment. Title VI of that same Act prohibits any entity that receives federal funds from discriminating on the basis of race. And Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex from any entity that receives federal funds. But what does it mean that these laws prohibit “discrimination?” [Read More]


2017 James Kent

2017 James Kent Summer Academy

Timothy Courtney March 06, 2017

The Federalist Society’s James Kent Summer Academy is a program for students and recent graduates who demonstrate strong potential for being leaders among a future generation of legal scholars. Participants will have an opportunity to engage in academic discourse, to learn about an academic career track, to deepen their understanding of key ideas about the law, the founding period, originalism, religious liberty, and markets and the law, and to receive some personalized career planning and publishing guidance. [Read More]


2017 Symposium

Student Symposium Livestream: Universities and the First Amendment

Timothy Courtney March 03, 2017

Universities have long been thought of, and cherished, as places for the free exchange of ideas. This idea has, however, come under pressure. Student groups have now routinely exercised pressure to keep people who they disagree with off campus. And safe spaces and trigger warnings—which limit speech that some have deemed offensive—have become regular features at universities across the nation. 

Many see the climate of shouting-down or protesting the expression of others' viewpoints as the symbolic beginning of an era limiting the freedom of speech on college campuses. While surveys seem to show a majority of students disagree with universities curtailing speech, even when it is offensive, vocal minorities with opposing views have been the ones capturing news headlines and the attention of the public at large.

With the accessibility to speech provided by the internet and viral sharing of information, expression and speech spread with more ease than ever, but this same technology creates opportunities for back-lash on social media and gives a larger stage to those who would threaten the free market of ideas at our nation's universities.

The First Amendment protects principles which have always required vigilance to maintain, and today's world makes no exception. This panel will explore how these developments have affected intellectual discourse on campus and if they are conducive to a meaningful learning experience at our universities.


- Prof. Robert Post, Dean and Sol & Lillian Goldman Professor of Law, Yale Law School

- Prof. Phillip Hamburger, Maurice and Hilda Friedman Professor of Law, Columbia Law School

- Prof. Suzanne Goldberg, Executive Vice President for University Life, Columbia University; Herbert and Doris Wechsler Clinical Professor of Law, Columbia Law School

- Prof. Michael McConnell, Richard and Frances Mallery Professor of Law; Director, Constitutional Law Center; Senior Fellow, Hoover Institution

- Moderator: Hon. Thomas Hardiman, U.S. Court of Appeals, Third Circuit



Past panels:

Religious Liberty after the USCCR Report

Debate: ABA Model Rule 8.4

Campaign Finance and Free Speech

Privacy and Freedom of the Press


gavel and courtroom

Should Bar Disciplinary Committees Conduct Political Fact-Checking?

Maya Noronha March 02, 2017

On February 20, fifteen law professors submitted a complaint to the D.C. bar seeking discipline of Kellyanne Conway for public comments she made in television interviews during her first month as Counselor to the President. These professors based their challenge on specific statements Conway made about observers of the presidential inauguration, a supposed Bowling Green massacre, the Iraqi refugee program, and Ivanka Trump’s clothing line. [Read More]


Teleforum Preview: Regulatory Crimes: Clay v. U.S. Oral Argument by John J. Park, Jr.

Regulation by Litigation at the State Level

John J. Park, Jr. March 01, 2017

Last week, Peggy Little and the Competitive Enterprise Institute published Pirates at the Parchment Gates, in which she explained how the practice of state attorneys general entering into contingency fee contracts runs roughshod over at least three constitutional principles. Those contracts got their start in the tobacco litigation of the 1990s. After that experience left a bad taste in the mouths of many, the practice moved toward the shadows although it never disappeared. Average wholesale price litigation and other such schemes kept the practice alive until it reappeared in the recent climate change inquisition.

Little notes that, when state attorneys general enter into contingent fee contracts with private counsel, they: (1) end run the appropriation process in a constitutionally impermissible way that cannot be sanctioned by state statutes; (2) it creates pots of money that have not been legislatively authorized and are not subject to legislative control and accountability; and (3) the allow private firms to play a role in governmental investigations and prosecutions in violation of due process. Moreover, the contracts represent bad policy.

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