Environmental Law & Property Rights Practice Group Podcast John Elwood April 23, 2015
Under the Agricultural Marketing Agreement Act of 1937, the USDA has authority to regulate the sale of certain agricultural products, including California-grown raisins, through the use of “marketing orders.” The marketing order specific to California-grown raisins directs the Raisin Administrative Committee, a branch of the USDA, to establish a yearly raisin tonnage reserve requirement. Every year in February, raisin farmers are told what percentage of their crop is the “reserve requirement” they must turn over to the Committee. Failure to comply results in fines and penalties. In 2002 and 2003, the Horne family refused to comply and was fined over $700,000. In a 2013 decision, the United States Supreme Court unanimously held that regulated entities cannot be compelled to pay regulatory fines before they may contest their constitutionality, under the Fifth Amendment’s protection against uncompensated government seizure of private property (the Takings Clause). On remand in Horne, the federal district court and the Ninth Circuit Court of Appeals found that there was no taking. The Supreme Court heard oral arguments on April 22, 2015, and considered three questions: (1) Whether the government's “categorical duty” under the Fifth Amendment to pay just compensation when it “physically takes possession of an interest in property” applies only to real property and not to personal property; (2) whether the government may avoid the categorical duty to pay just compensation for a physical taking of property by reserving to the property owner a contingent interest in a portion of the value of the property, set at the government's discretion; and (3) whether a governmental mandate to relinquish specific, identifiable property as a “condition” on permission to engage in commerce effects a per se taking.
Short video with Ilya Somin discussing Horne v. USDA
- John Elwood, Partner, Vinson & Elkins LLP
Ilya Somin April 21, 2015
George Mason Law School Professor Ilya Somin previews an upcoming Supreme Court case in which Farmer Horne objects to an obscure government program stemming from 1930’s New Deal legislation in which raisin farmers are required to surrender a percentage of their crop to the Raisin Administrative Committee. Petitioner and farmer Horne claims that being forced to turn over a percentage of his raisin crop to the government violates the Takings Clause of the 5th Amendment. The government asserts that the Takings Clause does not apply to personal property, and even if it did, that Horne is fairly compensated because his overall profits are increased.
Professor Somin co-signed the amicus brief of Constitutional and Property Law Scholars in support of petitioner.
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. SCOTUScast 4-7-15 featuring David Post
David G. Post April 07, 2015
On February 24, 2015, the Supreme Court heard oral argument in Henderson v. United States. The question in this case is whether under Rule 41(g) of the Federal Rules of Criminal Procedure or under general principles of equity the court can order the government to either transfer firearms owned by a convicted felon to a third party or sell the firearms and return the proceeds to the defendant or whether the defendant's felony conviction, which renders the defendant legally unable to own firearms, prevents this.
To discuss the case, we have Prof. David Post, who is a Professor of Law at the Temple University Beasley School of Law. 17th Annual Faculty Conference
This panel was part of the 17th Annual Federalist Society Faculty Conference held on January 3-4, 2015 at the Omni Shoreham Hotel in Washington, DC.
Young Legal Scholars Paper Presentations
In Memory of Prof. Dan Markel, Florida State University School of Law, Prawfsblawg Founder, and former Searle fellow
- Prof. William Baude, University of Chicago Law School, "Is Originalism the Law?"
- Prof. Charles Korsmo, Case Western University School of Law, "Aggregation by Acquisition: Replacing Class Actions with a Market for Legal Claims"
- Prof. Minor Myers, Brooklyn Law School, "Aggregation by Acquisition: Replacing Class Actions with a Market for Legal Claims"
- Prof. Christopher Newman, George Mason University School of Law, "Bailment and the Property/Contract Interface"
- Prof. Christopher Walker, Ohio State University Moritz College of Law, "Inside Agency Interpretation"
- Prof. Kevin Walsh, University of Richmond School of Law, "In the Beginning There Was None: Supreme Court Review of State Criminal Prosecutions"
- Commentor: Prof. James Lindgren, Northwestern University School of Law
- Commentor: Prof. Keith Hylton, Boston University School of Law
- Moderator: Prof. Richard Garnett, University of Notre Dame Law School
Washington, DC Patents and Innovation: Addressing Current Issues
January 3, 2015
Parity between the treatment of intellectual property rights (IPRs) and real property is a core principle of the DOJ/FTC 1995 Guidelines on licensing patents, which provide that the “[a]gencies apply the same general antitrust principles to conduct involving intellectual property that they apply to conduct involving any other form of tangible or intangible property.” Are these guidelines still being followed, or have the Federal Trade Commission and Department of Justice have taken actions that signal a departure, and perhaps a skepticism about patent licensing activity, particularly with respect to technological standards? Under either scenario, what are the implications for innovative U.S. companies at home and abroad, including in China where regulators are using antimonopoly powers to extract commercial concessions from U.S. technology leaders? How can patent rights and competition policiesbest co-exist while preserving incentives for firms to invest in R&D and disseminate patented technologies through licensing, standard setting, and other voluntary arrangements?
This panel was part of a conference titled "Patents and Innovation: Addressing Current Issues". The conference was held on Tuesday, December 2, 2014, at the Mayflower Hotel in Washington, DC.
- Mr. Alden F. Abbott, Deputy Director, Edwin Meese III Center for Legal and Judicial Studies; John, Barbara, and Victoria Rumpel Senior Legal Fellow, The Heritage Foundation; former Director of Patent and Antitrust Strategy, BlackBerry
- Hon. Joshua D. Wright, Commissioner, Federal Trade Commission
- Moderator: Hon. Paul Michel, former Chief Judge, U.S. Court of Appeals, Federal Circuit
- Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society