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News

Supreme Court Building at dusk
Photo Credit: Shutterstock | Sean Pavone (link)

Article I Initiative Constitution Day Series: The Importance and Dangers of an Independent Judiciary

Linda A. Kerns September 21, 2017
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The fourth and final essay in the Philadelphia Inquirer's Constitution Day series addresses Article III judges and the intent of the Framers of the Constitution to create an independent judiciary. Former Circuit Judge Michael W. McConnell outlines the brilliance of the design of our Article III courts but also highlights the threats to a dispassionate judiciary from political wrangling, the administrative state and judges who encroach upon duties that should be reserved for the legislative and executive branch. Anyone with even a passing familiarity of the ongoing confirmation hearings for President Trump's nominations to the Circuit and District Courts will appreciate the timeliness of this thought provoking piece.  [Read More]

News

Principled Realism - President Trump's Speech to the UN

John S. Baker, Jr. September 20, 2017
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John Bolton called President Trump's UN speech on Tuesday the best of his presidency. Actually, much of it sounded like it had been written by Bolton. It was truly a great speech. Clearly in content. And while this POTUS is not a gifted orator like Reagan, he projected such power, clarity and determination that foreign leaders certainly now know that the US is once again leading – and not from behind.

Not surprisingly, Josh Earnest, former White House Press Secretary for President Obama, opined that President Trump was “foolish to goad or provoke or mock” the North Korean leader. The Venezuelan Foreign Minister also rejected Trump’s threats to promote “restoring” Venezuelan democracy, saying, “For a moment, we didn’t know if we were listening to President Reagan in 1982 or President Trump in 2017.” Reagan is, was, and will be remembered around the world (in the words of NBC News at the time of his death) because, “He stunned the Soviet Union with his tough rhetoric, calling it an ‘evil empire’ whose leaders gave themselves the right to commit every crime.” [Read More]

The Supreme Court Need Not “Ignore Pleading Rules” to Decide the Constitutionality of Forced Union Dues Imposed on Public Employees

Raymond J. LaJeunesse September 20, 2017
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The petition for certiorari filed in Janus v. American Federation of State, County, & Municipal Employees, Council 31, asks the U.S. Supreme Court to decide whether the First Amendment allows a government to force its employees to pay “agency fees” to a labor organization that is their “exclusive representative” for purposes of “collective bargaining” with the government.[1] This is the precise issue that the Court considered last term in Friedrichs v. California Teachers Ass’n, but did not decide after oral argument due to the untimely death of Justice Scalia.[2],[3  [Read More]

News

Article I Initiative Constitution Day Series: A Powerful but Accountable Executive

Linda A. Kerns September 20, 2017
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In the birthplace of our nation, historical reminders of the Constitution surround modern day Philadelphians, to the point where the landmarks fade into the background. The irony of the genius of the Constitution lies in its success: most citizens remain blissfully unaware of the details that keep their government in check to guarantee their freedoms.

The Philadelphia Inquirer and The Federalist Society joined together to produce a series of essays to invite citizens to dig a little deeper into understanding the formation of the their government. This essay, the third in the series, by Professor John Yoo and Saikrishna Prakash, invites you to consider the awesome power of the presidency along with the inherent limitations that protect us from the whim and caprice of an individual.  [Read More]

News

Litigation Update: Sanctuary Cities in the District Court

Wesley Hodges September 19, 2017
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At 3:00 PM (ET) today, the Federalist Society will host a Teleforum with Dr. John Eastman of Chapman University to present a litigation update on sanctuary cities in the Northern District of Illinois.

Please visit the Teleforum event page to learn more on the subject. The call is open to all members of the Federalist Society and a recording will be uploaded afterwards as a podcast that is available for anyone to download and listen to.  [Read More]

News

Article I Initiative Constitution Day Series: Dangers of Legislative Atrophy

Nathan Kaczmarek September 19, 2017
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The second piece in the Philadelphia Inquirer's Constitution Day Series is about the Legislative branch and is authored by distinguished fellow at the Hudson Institute and Article I participant Christopher DeMuth.

DeMuth argues, that while Congress has been less central than the Founders intended, it still has been essential to the success and durability of American government. He also warns that the decades long decline of the institution threatens to "imperil the constitutional order we all depend on."  [Read More]

News

Constitution

Article I Initiative Constitution Day Series: Separation of Powers

Nathan Kaczmarek September 18, 2017
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This week the Philadelphia Inquirer is celebrating the 230th anniversary of the signing of the Constitution with four articles from Federalist Society and Article I Initiative experts which highlight the separation of powers and the first three articles of our founding document.

The first essay, written by senior legal fellow at the Heritage Foundation, Hans von Spakovsky examines the separation of powers as fundamental to governmental accountability, maintaining the unique form of our government, and preserving liberty. 

  [Read More]

State Courts & AGs

Supreme Court Building at dusk
Photo Credit: Shutterstock | Sean Pavone (link)

Docket Watch: Burgess v. FDIC, the Appointments Clause, and the Separation of Powers

Oliver Dunford September 15, 2017
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Last week, the Fifth Circuit became the third circuit court to consider whether administrative law judges (ALJs) are “inferior Officers” subject to the Appointments Clause. In Burgess v. FDIC, the court stayed an FDIC order that assessed a civil penalty against Cornelius Burgess and required his withdrawal from the banking industry. Mr. Burgess is asking the Fifth Circuit to review the FDIC’s order, which he argues is invalid because the ALJ who issued the agency’s initial decision was not appointed under the Appointments Clause. The court held that Burgess established a likelihood of success on his Appointments Clause challenge.

This ruling echoes the Tenth Circuit’s opinion in Bandimere v. SEC, in which the court held that ALJs in the Securities and Exchange Commission are “inferior Officers.” But the D.C. Circuit, in Lucia v. SEC, reached the opposite conclusion.

What’s really at stake?  [Read More]

News

In Response to E.U. Competition Ruling, Google to Modify Search Practices

John T. Delacourt September 13, 2017
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A key question remaining after the European Commission’s June 27 decision against Google was how the company would comply with the ordered relief.  After holding that Google had abused its dominant position as an Internet search engine by promoting its own comparison shopping service in search results and demoting those of competitors, the Commission imposed a September 28 deadline to remedy the conduct.  Specifically, the Commission ordered the company to propose a plan to: (1) “stop its illegal content” and (2) make changes to how it displays shopping results.  [Read More]

Bar Watch

ABA Watch: Unconstitutional and Blatantly Political, Model Rule 8.4(g)

George W. Dent September 11, 2017
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In 2016 the American Bar Association added new Rule 8.4(g) to its Model Rules of Professional Conduct. The rule forbids any lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of” several listed factors “in conduct related to the practice of law.” Comment 3 states that “discrimination . . . includes harmful verbal or physical conduct that manifests bias or prejudice towards others.”

The new rule goes beyond existing Model Rule 8.4(d) in several respects. It extends to behavior that a lawyer does not know, but “reasonably should know,” violates the rule. It adds to the list of prohibited bases for discrimination, inter alia, “gender identity” and “socioeconomic status.” Most significantly, it expands the scope of covered activities from conduct that is “prejudicial to the administration of justice” or that occurs “in the course of representing a client” to encompass conduct “related to the practice of law.”

  [Read More]

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