Federal Courts

"Complaints" About the Weather: Why the Fifth Circuit's Panel Decision in Comer v. Murphy Oil Represents the Wrong Approach to the Challenge of Climate Change

David B. Rivkin, Jr., Carlos Ramos-Mrosovsky, Matthew S. Raymer January 29, 2010
Common law “nuisance” litigation has emerged as the strategy of choice for climate change activists and plaintiffs’ lawyers seeking to limit in a piecemeal fashion U.S. greenhouse gas (“GHG”) emissions.  The recent decision by a panel of the United States Court of Appeals for the Fifth Circuit in Comer v. Murphy Oil U.S.A., 585 F.3d 855 (5th Cir. 2009), takes this trend to a new level.  For the first time, and what some maintain is contrary to established precedent, a United States Court of Appeals has allowed private parties to bring common law nuisance claims in federal court on the theory that particular GHG emissions from defendants’ sources injured plaintiffs and their property by exacerbating specific weather events.

A Preview of the Supreme Court October 2008 Term - Audio/Video

Audio and Video
Allyson Newton Ho, William G. Otis, Virginia Seitz, Kannon K. Shanmugam, George J. Terwilliger III, Terry Eastland October 03, 2008

The Federalist Society recently sponsored a panel of noted legal practitioners and scholars on the upcoming Supreme Court term.  Panelists included Allyson Ho of Morgan Lewis, William Otis, Former White House Special Counsel, Virginia Seitz of Sidley Austin, Kannon Shanmugam, Former Assistant to the Solicitor General, George Terwilliger of White & Case and Former Deputy Attorney General, and Terry Eastland of The Weekly Standard as the moderator. [Listen or watch!]

A Religious Organization's Autonomy in Matters of Self-Governance: Hosanna-Tabor and the First Amendment

Engage Volume 13, Issue 1, March 2012
Carl H. Esbeck March 22, 2012

A Religious Organization's Autonomy in Matters of Self-Governance: Hosanna-Tabor and the First AmendmentIn the second week of January, the U.S. Supreme Court handed down its unanimous decision in Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission. The case involved a fourth-grade teacher, Cheryl Perich, suing her employer, a church-based school, alleging retaliation for having asserted her rights under the Americans with Disability Act (ADA). The Equal Employment Opportunity Commission filed the original suit, and the teacher intervened as a party. In the lower federal courts Hosanna-Tabor raised the “ministerial exception,” which recognizes that under the First Amendment religious organizations have the authority to select their own ministers—which necessarily entails not just initial hiring but also promotion, retention, and other terms and conditions of employment. Over the last forty years the ministerial exception has been recognized by every federal circuit to have considered it. Indeed, the exception overrides not just the ADA but also a number of venerable employment nondiscrimination civil rights statutes. Just who is a “minister,” however, has varied somewhat from circuit to circuit—and in any event the Supreme Court had never taken a case involving the ministerial exception. [Read more!]

A Return to "the Heady Days"? The Supreme Court Addresses Whether the Bivens Doctrine Should Extend to Employees of Government Contractors in Minneci v. Pollard

Engage Volume 12, Issue 3, November 2011
Robert T. Numbers, Lisa L. Dixon December 09, 2011

A Return to "the Heady Days"? The Supreme Court Addresses Whether the Bivens Doctrine Should Extend to Employees of Government Contractors in Minneci v. PollardOn November 1, 2011, the Supreme Court heard oral arguments in Minneci v. Pollard, a case that will determine whether employees of government contractors can be held liable for damages for alleged constitutional violations under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics and its progeny. Minneci should resolve a circuit split between the Ninth Circuit, which held that employees of government contractors can be held liable under Bivens, and the Fourth, Tenth, and Eleventh Circuits, which held that they could not. In resolving this circuit split, the Supreme Court will need to address a number of questions that have divided lower courts for many years, such as whether employees of governmental contractors are considered federal actors; whether recognition of a Bivens claim is precluded if a plaintiff has alternative remedies, even if those remedies are not congressionally crafted; and how the imposition of asymmetrical liability costs on government contractors impacts availability of a Bivens remedy. [Read more!]

ABA Praises Decision in Arizona v. United States

ABA Watch August 2012
August 03, 2012

ABA Praises Decision in Arizona v. United StatesABA President Bill Robinson praised the United States Supreme Court’s decision in Arizona v. United States, which held that three provisions of S.B. 1070, Arizona’s immigration law, were preempted by federal law. The ABA filed an amicus brief in the case, arguing that the law should be overturned. The Association maintained that “immigration law and policy are and must remain uniquely federal, with states having no role in immigration enforcement except pursuant to federal authorization and oversight.” The ABA’s Commission on Immigration influenced the ABA’s brief in the case. The Commission has provided pro bono assistance to detainees on the Mexican border... [Read more!]