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Fairholme Funds, Inc. v. United States: Litigation Discovery and the Most Transparent Administration in History

Kennedy, Korematsu, and the Travel Ban

John Reid February 10, 2017
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President Trump’s recent travel ban sparked an interesting constitutional discussion regarding the limits of executive authority.  Assuming Judge Robart’s ruling, blocking President Trump’s executive order, does make its way to the Supreme Court, the potential Supreme Court ruling would have broad implications beyond President Trump’s executive order regarding a travel ban.  The reverberations of such a ruling will likely effect presidential powers for years to come. For the liberal bloc of the Court to have any hopes of overturning the largest portions of President Trump’s order and create new precedent they need the vote of Justice Kennedy, the so-called “swing vote” on the Supreme Court. In order to draw Justice Kennedy to their side they could offer one incredibly enticing opportunity: the chance to overturn the universally reviled Korematsu v. United States. [Read More]

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Friedrichs Redux

Raymond J. Nhan, David Dewhirst February 02, 2017
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Of the many cases affected by the untimely passing of Justice Antonin Scalia, no case had more far-reaching First Amendment potential than Friedrichs v. California Teachers Association. One of the most anticipated cases during the October 2015 term, the case required the Court to determine whether it would accede to public school teachers’ request and overrule Abood v. Detroit Board of Education. Abood arose as a sort of First Amendment aberration in 1977, holding that public employees could be forced to pay unions compulsory agency fees as a condition of employment. [Read More]

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[VIDEO] Lee v. Tam: "Disparaging Trademarks and the First Amendment

Timothy Courtney January 18, 2017
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Can the Patent and Trademark Office (PTO) deny a trademark to a group with an offensive name - or does the First Amendment invalidate the provision of trademark law under which the denial was made? Attorney and legal commentator John Shu explains the dispute between the PTO and an Asian-American rock band seeking to trademark the name “The Slants” in the case Lee v. Tam. The Supreme Court will hear oral argument today.

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The Constitution Says Nothing About Behavioral Economics

Timothy Courtney January 10, 2017
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Federalist Society member Todd Zywicki is in the Wall Street Journal:

Behavioral economics has taken the academy by storm over the past two decades. The Obama administration has even looked to the discipline—which posits that psychological biases frequently lead consumers to make bad economic decisions—to shape government policy. But is behavioral economics relevant to interpreting the Constitution? That’s the novel claim raised by Expressions Hair Design v. Schneiderman, which the Supreme Court will hear Tuesday.

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