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Article: Supreme Court Season of Turmoil

SCOTUS Orders: Two new cert grants

Timothy Courtney March 27, 2017
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The Supreme Court issued a new Order List this morning; in addition to several GVRs there were two new grants of cert.  Opinions may issue on Tues and Wed of this week.

Cert Grants:

(1) U.S. Bank v. Village at Lakeridge: (grant limited to Question #2):   Whether the appropriate standard of review for determining non-statutory insider status is the de novo standard of review applied by the U.S. Courts of Appeals for the 3rd, 7th and 10th Circuits, or the clearly erroneous standard of review adopted for the first time by the U.S. Court of Appeals for the 9th Circuit in this action.

(2) Leidos, Inc. v. Indiana Public Retirement Sys.:   Whether the U.S. Court of Appeals for the 2nd Circuit erred in holding – in direct conflict with the decisions of the U.S. Courts of Appeals for the 3rd and 9th Circuits – that Item 303 of Securities and Exchange Commission Regulation S-K creates a duty to disclose that is actionable under Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5.

CVSG: Snyder v. Doe (Whether retroactively applying a sex-offender-registry law that classifies offenders into tiers based on crime of conviction, requires certain offenders to register for life, requires offenders to report in person periodically and within days of certain changes to registry information, and restricts offenders' activities within school zones imposes “punishment” in violation of the ex post facto clause.)

Other Orders of Note:

Town of Chester v. Laroe Estates:  Motion of Acting SG for leave to participate in oral argument as amicus curiae and for divided argument is granted. The motion of Nancy Sherman, Executrix for reconsideration of motion to be added as a respondent and for leave to participate in oral argument is denied. 

Wilson v. Sellers:  In light of the letter filed by respondent on March 15, 2017, the order inviting Adam K. Mortara, Esquire, of Chicago, Illinois, to brief and argue, as amicus curiae, in support of the judgment below is withdrawn.

News

FCC Front Door

A Series of Fresh Proposals for Reforming Communications Policy

Randolph J. May March 24, 2017
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On March 20, I published a commentary, “A Proposal for Improving the FCC’s Merger Review Process,” suggesting that the newly-reconstituted Federal Communications Commission, with Ajit Pai as its new Chairman, issue a policy statement that clearly indicates the manner in which, going forward, it intends to conduct merger reviews. This piece is the latest in a series of Free State Foundation commentaries, all published since the beginning of this year, containing fresh proposals for reforming communications policies. [Read More]

TAGS:FCC

News

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

Why Scalia Was Wrong About Chevron

Evan Bernick March 23, 2017
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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]

News

Grilling Gorsuch and fearing the Federalist Society

Timothy Courtney March 23, 2017
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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.

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News

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
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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]

News

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

Joshua Thompson March 08, 2017
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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]

News

2017 James Kent

2017 James Kent Summer Academy

Timothy Courtney March 06, 2017
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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]

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2017 Symposium

Student Symposium Livestream: Universities and the First Amendment

Timothy Courtney March 03, 2017
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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.

Panelists:

- 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
 

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