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Separation of Powers

"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.

“Eight Ways to Sunday”: Which Direction, Kentucky Supreme Court?

John K. Bush, Paul E. Salamanca March 25, 2007

Attempted synthesis of the rulings of Kentucky’s highest court threatens to go the proverbial “eight ways to Sunday.” For one thing, although Kentucky is not very populous and its Supreme Court sharply limits discretionary review, still literally thousands of opinions have been rendered by the Court and its predecessor, the Kentucky Court of Appeals, which prior to 1975 was the only appellate court in the Commonwealth. Also, great diversity of judicial philosophy among the Court’s members has resulted in sometimes warring opinions that make divergent points resembling the scattershot of a Kentucky dove hunter.

9th Annual Barbara K. Olson Memorial Lecture - Event Audio/Video

2009 National Lawyers Convention
Douglas H. Ginsburg, Eugene B. Meyer November 16, 2009

On September 11, 2001, at the age of 45 and at the height of her professional and personal life, Barbara Olson was murdered in the terrorist attacks against the United States as a passenger on the hijacked American Airlines flight that was flown into the Pentagon. The Federalist Society established this annual lecture in Barbara's memory because of her enormous contributions as an active member, supporter, and volunteer leader. Solicitor General Theodore B. Olson delivered the first lecture in November 2001. The lecture series continued in following years with other notable individuals. In 2009, Judge Douglas H. Ginsburg of the Court of Appeals for the D.C. Circuit delivered the lecture.

A Discussion about Judicial Review of Federalism - Event Audio/Video

Federalism & Separation of Powers Practice Group
Randy E. Barnett, Jesse H. Choper, Michael S. Greve September 18, 2008
On September 12, 2008, the Federalist Society and the American Enterprise Institute co-sponsored a conference titled "The Future of Federalism." This panel featured Prof. Randy Barnett of Georgetown Law, Prof. Jesse Choper of UC Berkeley Law, and Dr. Michael Greve of AEI as the moderator.

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!]