Publications

Subscribe in a reader

Welcome to the Federalist Society's online publication archive.  Choose a publication to view from the menu on the left or by selecting one of our most recent publications below.  You can also browse our publications by Practice Group, Special Project, and Subject.

 


 


Controversial Sentencing in the Antwuan Ball Case - Podcast

April 18, 2014  |  Douglas Berman, Paul G. Cassell

prison bars

In 2005, Washington, D.C. resident Antwuan Ball was indicted for a massive drug conspiracy and associated murders. Following a lengthy jury trial he was acquitted on all the counts, except for one crack distribution count. At sentencing, District Judge Richard Roberts found “clear evidence of [Ball's leadership in] a drug conspiracy” and sentenced Ball to a 225-month prison sentence for the drug distribution — far in excess of the recommended guideline sentence for the single drug distribution charge. The D.C. Circuit upheld this sentence in a decision on March 14. Was the D.C. Circuit Court correct? Our experts discussed the opinion and answered questions from our call-in audience.

Featuring:

  • Prof. Douglas Berman, Robert J. Watkins/Procter & Gamble Professor of Law, The Ohio State University Moritz College of Law
  • Hon. Paul G. Cassell, Ronald N. Boyce Presidential Endowed Chair in Criminal Law, The University of Utah College of Law

[Listen now!]

Halbig v. Sebelius - The Next Threat to Obamacare? - Podcast

April 16, 2014  |  Jonathan H. Adler, Nicholas Bagley

healthcare reform

The authors of the PPACA envisioned a system in which state governments would establish health insurance exchanges in which individuals could shop for health coverage and receive tax credits and subsidies for the purchase of qualifying health plans. After the law was passed, however, a majority of states refused to set up their own exchanges, leaving the task to the federal government. The IRS subsequently issued a rule purporting to authorize tax credits and cost-sharing subsidies in both state and federal exchanges. In Halbig v. Sebelius and three other cases pending in federal court, plaintiffs challenge the authority of the IRS to grant tax credits and cost-sharing subsidies in federal exchanges. These suits will help clarify the limits of agency authority to implement the PPACA and, if successful, these suits could have a significant impact on the implementation of the PPACA.

Featuring:

  • Prof. Jonathan Adler, Johan Verheij Memorial Professor of Law, Case Western Reserve University School of Law
  • Prof. Nicholas Bagley, Assistant Professor of Law, University of Michigan Law School

[Listen now!]

Lawson v. FMR LLC - Post-Decision SCOTUScast

April 15, 2014  |  Jessie Liu

Jessie LiuOn March 4, 2014, the Supreme Court issued its decision in Lawson v. FMR LLC. The question in the case is whether the Sarbanes-Oxley Act's retaliation protections for whistleblowers extend to employees of privately owned contractors who are working for public companies.

Justice Ginsburg delivered the opinion of the Court, which held that the Sarbanes-Oxley Act's whistleblower protection does extend to employees of a public company's private contractors and subcontractors. The decision of the First Circuit was reversed and the case remanded for further proceedings. Chief Justice Roberts, Justice Breyer, and Justice Kagan joined the opinion of the Court. Justices Scalia and Thomas joined in principal part. Justice Scalia filed an opinion concurring in principal part and concurring in the judgment, which Justice Thomas joined. Justice Sotomayor filed a dissenting opinion, joined by Justices Kennedy and Alito.

To discuss the case, we have Jessie Liu, who is a partner at Jenner & Block.

[Listen now!]

Loughrin v. United States - Post-Argument SCOTUScast

April 14, 2014  |  Todd F. Braunstein

Todd BraunsteinOn April 1, 2014, the Supreme Court heard oral argument in Loughrin v. United States. The question in this case is whether the government must prove that a defendant intended to defraud a bank and expose it to risk of loss in every prosecution under 18 U.S.C. § 1344, or whether the government need only prove that a defendant knowingly attempted to defraud someone “to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises.

To discuss the case, we have Todd Braunstein, who is counsel at the law firm WilmerHale.

[Listen now!]

Wood v. Moss - Post-Argument SCOTUScast

April 11, 2014  |  Patrick Garry

Patrick GarryOn March 26, 2014, the Supreme Court heard oral argument in Wood v. Moss. This lawsuit against several Secret Service agents presents two questions: First, did the court of appeals err in denying qualified immunity to agents protecting the president by evaluating the respondent’s claim of viewpoint discrimination at a high level of generality, and concluding that pro- and anti-Bush demonstrators should have been positioned an equal distance from the President while he was dining on the outdoor patio and while he was travelling by motorcade? Second, have respondents adequately pleaded viewpoint discrimination in violation of the First Amendment when no factual allegations support their claim of discriminatory motive and there was an obvious security-based rationale for moving the nearby anti-Bush group and not the farther-away pro-Bush group?

To discuss the case, we have Patrick Garry, who is a professor of law at the University of South Dakota School of Law.

[Listen now!]

Sebelius v. Hobby Lobby Stores, Inc.

April 10, 2014  |  Michael W. McConnell

“Conscience Exemptions”Prof. Michael W. McConnell recapts the oral argument in Sebelius v. Hobbuy Lobby Stores, Inc. and offers his thoughts on the four key issues in the case....[Read Now!]

The First Amendment and Campaign Finance: Assessing the Recently-Decided McCutcheon v. FEC Case - Podcast

April 9, 2014  |  Bradley A. Smith

flag money

Stating that “There is no right more basic in our democracy than the right to participate in electing our political leaders,” on April 2, 2014, the U.S. Supreme Court struck down the federal biennial limit on contributions to non-candidate committees. News coverage of the decision explains that it effects only a small handful of donors, but characterizes it as important nevertheless. How sweeping is the decision, and how important might it prove to be in coming elections? Is the Court now positioned to continue to favor the First Amendment over the Bipartisan Campaign Reform Act?

Featuring:

  • Prof. Bradley A. Smith, 2013-14 Judge John T. Copenhaver Visiting Endowed Chair of Law, West Virginia University College of Law and Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law, Capital University Law School and former Chairman, Federal Election Commission

[Listen now!]

United States v. Quality Stores - Post-Decision SCOTUScast

April 8, 2014  |  Kristin E. Hickman

Kristin HickmanOn March 25, 2014, the Supreme Court issued its decision in United States v. Quality Stores. The question in this case is whether severance payments made to employees whose employment was involuntarily terminated are taxable under the Federal Insurance Contributions Act (“FICA”), 26 U.S.C. 3101 et seq.

In an 8-0 opinion delivered by Justice Kennedy, the Court held that severance payments to employees who are involuntarily terminated are taxable wages for purposes of the Federal Insurance Contributions Act. The judgment of the Sixth circuit was reversed and remanded. Every justice joined Justice Kennedy’s opinion except for Justice Kagan, who took no part in the consideration or decision of the case.

To discuss the case, we have Kristin Hickman, Harlan Albert Rogers Professor in Law; Associate Director, Corporate Institute at the University of Minnesota Law School.

[Listen now!]

Kaley v. United States - Post-Decision SCOTUScast

April 8, 2014  |  Darpana Sheth

Darpana ShethOn February 25, 2014, the Supreme Court issued its decision in Kaley v. United States. The question in this case is whether, when a post-indictment ex parte restraining order freezes assets needed by a criminal defendant to hire his attorney of choice, the Fifth and Sixth Amendments require a pre-trial hearing at which the defendant may challenge the evidentiary support and legal theory upon which the government relied to freeze the assets.

In a 6-3 opinion delivered by Justice Kagan, the Court held that when challenging the legality of a pre-trial asset seizure under 21 U.S.C. § 853(e)(1), a criminal defendant who has been indicted is not constitutionally entitled to contest a grand jury’s determination of probable cause to believe that he committed the crimes charged. The opinion of the Eleventh Circuit was affirmed and remanded. Justices Thomas, Alito, Kennedy, Ginsburg, and Scalia joined the opinion of the Court. Chief Justice Roberts filed a dissenting opinion, which Justices Breyer and Sotomayor joined.

To discuss the case, we have Darpana Sheth, an attorney at the Institute for Justice in Arlington, VA. 

[Listen now!]

FDA's Proposed Ban of Trans Fat in Processed Food - Podcast

April 8, 2014  |  Daren Bakst, Stuart Pape

FDA

The Food and Drug Administration (FDA) has taken the first step to effectively ban trans fat from processed food. In November 2013, the Food and Drug Administration published a tentative determination that partially hydrogenated oils, which are the major dietary source of trans fat in processed food, are not “generally recognized as safe” (GRAS). This agency action, if finalized, “could, in effect, mean the end of artificial, industrially-produced trans fat in foods” according to the FDA. This unprecedented action would come after consumption of trans fat from products containing partially hydrogenated oils has declined from 4.6 grams a day in 2003 to about 1 gram a day in 2012. What is the legal authority for this action and are there legal arguments against the FDA moving forward in the proposed manner? What are the policy arguments for and against this action to eliminate “artificial” trans fat from the food supply? Could other aggressive actions against “unhealthy” ingredients such as caffeine, sodium and sugar be on the horizon?

Featuring:

  • Daren BakstResearch Fellow in Agricultural Policy, The Heritage Foundation
  • Stuart Pape, Partner, Patton Boggs LLP

[Listen now!]

McCutcheon v. FEC - Post-Decision SCOTUScast

April 7, 2014  |  Derek Muller

Derek MullerOn April 2, 2014, the Supreme Court issued its decision in McCutcheon v. Federal Election Commission. This case involves constitutional challenges to federal election laws that limit, over the course of a two-year election cycle, the total amount a person may contribute to so-called “non-candidate committees,” such as political parties and political action committees. Petitioner McCutcheon contends that these limits are based on no “constitutionally cognizable interest” and therefore violate the First Amendment on their face, or alternatively, as applied to contributions to national party committees. In addition, McCutcheon contends, the limits are numerically so low as to be constitutionally invalid on that basis as well, both on their face and as applied. Finally, McCutcheon argues that federally imposed limits on contributions to candidate committees likewise violate the First Amendment for lack of a “constitutionally cognizable interest.”

In an opinion delivered by Chief Justice Roberts, the Court held by a vote of 5-4 that the aggregate limits violate the First Amendment, as they do little to prevent quid pro quo corruption or the appearance thereof, yet seriously restrict participation in the democratic process. Justices Scalia, Kennedy, and Alito joined the Chief’s opinion. Justice Thomas wrote an opinion concurring in the judgment. Justice Breyer wrote a dissenting opinion, joined by Justices Ginsburg, Kagan, and Sotomayor. The decision of the United States District Court for the District of Columbia was reversed and remanded.

To discuss the case, we have Derek Muller, an Associate Professor of Law at the Pepperdine University School of Law.

[Listen now!]

United States v. Castleman - Post-Decision SCOTUScast

April 7, 2014  |  Zachary Bolitho

Zachary C. BolithoOn March 26, 2014, the Supreme Court issued its decision in United States v. Castleman. This case involves the federal statute 18 U.S.C § 922(g), which forbids the possession of firearms by anyone convicted of “a misdemeanor crime of domestic violence.” 18 U. S. C. §922(g)(9). Here respondent Castleman, who was indicted for a federal firearms offense, had previously pleaded guilty to the state misdemeanor offense of having “intentionally or knowingly cause[d] bodily injury to” the mother of his child. The question before the Court is whether this conviction qualifies as “a misdemeanor crime of domestic violence” for purposes of section 922(g)(9).

By a vote of 9-0, the Court held that Castleman's conviction qualifies as a misdemeanor crime of domestic violence for purposes of section 922(g)(9). Justice Sotomayor delivered the opinion of the Court, which was joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, and Kagan. Justice Scalia wrote an opinion concurring in part and concurring in the judgment. Justice Alito also wrote an opinion concurring in the judgment, joined by Justice Thomas joined. The opinion of the Sixth Circuit was reversed and remanded.

To discuss the case, we have Zachary Bolitho, who is an Assistant Professor of Law at the Campbell University Norman Adrian Wiggins School of Law.

[Listen now!]



Do State Attorneys General Have a Duty to Defend State Laws? - Podcast

April 4, 2014  |  John W. Suthers, Neal E. Devins

state flags

Recently U.S. Attorney General Eric Holder, citing the Supreme Court's 5-4 decision in United States v. Windsor, urged the members of the National Association of Attorneys General to exercise their discretion to decline to defend state-level Defense of Marriage Acts (DOMA). State attorneys general of California, Pennsylvania, and Virginia, among others, have followed the Justice Department's lead in declining to defend such state laws. Colorado Attorney General John Suthers urged state attorneys general not to employ a "litigation veto" to nullify popularly enacted laws with which state attorneys general might disagree. What is the scope of a state attorney general's power to decline to execute or enforce state law on the basis that the law is or is thought to be unconstitutional and inconsistent with the oath to uphold the U.S. Constitution? What lessons, if any, may properly be drawn from the federal context and any Presidential authority to decline to enforce federal statutes that he views as unconstitutional? Do such instances of executive non-defense and non-enforcement amount to executive arrogation of legislative prerogative? Colorado Attorney General John Suthers and William & Mary Professor Neal Devins discussed these questions and engaged with the audience's comments and questions.

Featuring:

  • Prof. Neal E. Devins, Professor of Law, Professor of Government, and Director of the Institute of Bill of Rights Law, William and Mary Marshall-Wythe School of Law
  • Hon. John W. Suthers, Attorney General, State of Colorado

[Listen now!]

Chadbourne & Parke LLP v. Troice - Post-Decision SCOTUScast

April 4, 2014  |  Richard W. Painter

Richard PainterOn February 26, 2014, the Supreme Court issued its decision in three cases that question the preemptive scope of federal securities laws. Under the Securities Litigation Uniform Standards Act of 1998 (or “SLUSA”), federal law ordinarily precludes the bringing of state law-based class actions if they allege a misrepresentation or omission of a material fact “in connection with” the purchase or sale of a covered security. Instead such lawsuits must proceed, if at all, under federal securities laws. Three cases before the Court, grouped together under the name of the first plaintiff, Chadbourne & Parke LLP, question just how far the the preemptive scope of SLUSA extends. The issue is whether SLUSA preempts a class action in which the plaintiff-victims allege “(1) that they “purchase[d]” uncovered securities (certifi­cates of deposit that [we]re not traded on any national ex­change), but (2) that the defendants falsely told the victims that the uncovered securities were backed by covered securities.

By a vote of 7-2, the Court held in an opinion delivered by Justice Breyer that SLUSA does not preempt the plaintiffs’ state-law class actions, noting that “plaintiffs do not allege that the defendants’ misrepresentations led anyone to buy or to sell (or to maintain positions in)covered securities.” Chief Justice Roberts and Justices Scalia, Thomas, Ginsburg, Sotomayor, and Kagan joined Justice Breyer’s opinion. Justice Thomas also filed a concurring opinion. Justice Kennedy filed a dissenting opinion, in which Justice Alito joined.

To discuss these cases, we have Richard Painter, Professor of Law at the University of Minnesota Law School.

[Listen now!]

Alice Corp. Pty. Ltd. v. CLS Bank International - Post-Argument SCOTUScast

April 2, 2014  |  Adam Mossoff

Adam MossoffOn March 31, 2014, the Supreme Court heard oral argument in Alice Corporation Pty. Ltd. v. CLS Bank International. The question in the case is whether, for purposes of obtaining a patent, claims to computer-implemented inventions – including claims to systems and machines, processes, and items of manufacture – are directed to patent-eligible subject matter within the meaning of 35 U.S.C. § 101, as interpreted by the Supreme Court.

To discuss the case, we have Adam Mossoff, Professor of Law and Co-Director of Academic Programs and Senior Scholar at the Center for the Protection of Intellectual Property, George Mason University School of Law.

[Listen now!]