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


State Court Docket Watch News Clips: 9/15/2015
Photo Credit: "Pittsburgh Police Vehicles" by John Marino via Wikimedia Commons (link)

Report Finds Strong Potential for Foot Patrol as a Policing Change Agent

Police Foundation October 18, 2016

September 14, 2016 – Washington, D.C. – Arguably, nothing is more important in policing today than gaining and holding the trust of the community, particularly those most affected by crime and violence. Today, the Police Foundation, with generous support from the Charles Koch Foundation, is releasing a new report that provides real-life examples and optimism for how foot patrol can help law enforcement officers and agencies reconnect and build strong, mutually supportive relationships with their communities. [Read More]


Supreme Court Justice Antonin Scalia

The CFPB, Justice Scalia, and Lone Dissents

Raymond J. Nhan October 14, 2016

This past Tuesday, the United States Court of Appeals for the D.C. Circuit—in arguably its most significant opinion of the year—held that the Consumer Financial Protection Bureau (CFPB)’s structure is unconstitutional. In an opinion by Judge Brett Kavanaugh, the court held that the CFPB’s status as an independent agency headed by a single director who is removable only for cause violated Article II of the Constitution. Christian Corrigan previously blogged on this case and explained how Judge Kavanaugh’s opinion protects individual liberty.

Beyond the legal arguments, Judge Kavanaugh’s opinion is interesting because of its reliance on Justice Antonin Scalia’s dissent in Morrison v. Olson. In Morrison, the Court upheld the constitutionality of the Independent Counsel Act, which allows a special court to appoint an independent counsel to investigate government officials’ impropriety. [Read More]


FedSoc members at the Constitutional Court of Ukraine

Timothy Courtney October 12, 2016

From October 7-8, in association with the celebration of the 20th anniversary of the Constitutional Court of Ukraine, at the invitation of Judge Yurii Baulin, Chairman of the Court, Jim Kelly, Director of International Affairs for the Federalist Society, attended the International Conference "Constitutional Control and the Process of Democratic Transformation in Modern Society" in Kyiv, Ukraine, in which several members of the Federalist Society's European Judicial Network are participating.

Photo: clockwise from top left: Yuriy Shemshuchenko, Director of the Institute of State and Law at the National Academy of Sciences of Ukraine, Dainius Zalimas, President of the Constitutional Court of Lithuania, Alexandru Tanase, President of the Constitutional Court of Moldova, George Papuashvili, President of the Constitutional Court of Georgia (2006-2016), Serhii Vdovichenko, Judge of the Constitutional Court of Ukraine, Stanislav Shevchuk, Judge of the Constitutional Court of Ukraine, Jim Kelly.


CFPB logo

Setback for the CFPB in the DC Circuit

Christian Corrigan October 12, 2016

Yesterday, the U.S. Court of Appeals for the D.C. Circuit delivered a huge blow the Consumer Financial Protection Bureau (CFPB). In a terrific opinion on executive power and individual liberty, Judge Brett Kavanaugh wrote that the CFPB’s status as an independent agency headed by a single director violated Article II of the Constitution.  [Read More]


A Baker's Dozen Reasons to Oppose Sentencing "Reform" - By William G. Otis

Murphy v. Guerrero

Joseph Greenlee October 11, 2016

In Murphy v. Guerrero, the United States District Court for the Northern Mariana Islands addressed a host of Second Amendment challenges. Chief Judge Ramona Manglona, an Obama appointee who earlier this year struck down the last remaining handgun ban in a United States jurisdiction, struck down the following laws: a registration requirement, an “assault weapons” ban, a caliber restriction, a public carry ban, and a $1,000 excise tax. Judge Manglona upheld the following laws: a licensing requirement, a storage requirement, and a “large-capacity magazine” ban. [Read More]



The Natural Law Foundation of the Constitution

Devin Watkins October 05, 2016

Our legal culture has lost the context in which the Constitution was written. I speak of the natural law, the idea of law as founded upon reason and logic and not merely the ipse dixit of a given power. This has had profound implications for the modern misinterpretation of the Constitution.

To demonstrate this, let me give one clear example of the incompatibility of the modern positive-law notions with the ideas of the Founders.  When the Constitution was drafted, it did not contain any bill of rights and had no explicit protection for freedom of speech. To the legal positivist, without any explicit protection for the freedom of speech, the government could regulate speech. Yet none of the Founders actually believed this. [Read More]


Midnight monuments

Timothy Courtney October 03, 2016

Federalist Society contributor Donald Kochan writes for the Hill:

The lure of legacy is pulling President Obama to designate national monuments at an unprecedented rate and with even greater vigor in the midnight hour of his last term. President Obama has already designated more than two dozen national monuments, the most ever of any President. Teddy Roosevelt designated 18 monuments; Bill Clinton 19; and George W. Bush just 6.

President Obama’s monuments encompass 548 million acres of federal land and water, double the amount of any preceding President.  This includes the recent quadrupling of the size of the Papahānaumokuākea Marine National Monument off northwestern Hawaii to 582,578 square miles, making it what some have called the largest protected place on Earth.  He’s not done yet.  Several possible designations loom, including the approximately 1.9 million-acre proposed Bears Ears national monument in Utah.

For more on why it matters, read the full article, and download Professor Kochan's Teleforum podcast


Obama signing legislation

Misunderstanding of Statistics Confounds Analyses of Criminal Justice Issues in Baltimore and Voter ID Issues in Texas and North Carolina

James Scanlan October 03, 2016

I have written here before, most recently in “Things the President Doesn’t Know About Racial Disparities”  (Aug. 5, 2016), about the way the federal government, including the President, base many civil rights law enforcement policies on an understanding of statistics that is the exact opposite of reality. In particular, policies involving fair lending, school discipline, and criminal justice are based on the belief that relaxing standards or otherwise reducing the frequency of adverse outcomes will tend to reduce (a) percentage differences in rates of experiencing the outcomes and (b) the proportion racial minorities and other disadvantaged groups make up of persons experiencing the outcomes. In fact, however, reducing the frequency of an outcome tends to increase both (a) and (b).  [Read More]

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