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Publications
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.
February 2012 Bar Watch Update
February 3, 2012
In advance of the 2012 ABA Midyear Meetings in New Orleans, we are pleased to publish an interview conducted over email with ABA President-Elect Laurel Bellows, who will become president of the Association next summer. We are publishing her responses unedited.
Legislative Authority to Adjust Judicial Benefits Under the New Jersey Constitution
January 30, 2012
Last summer, Governor Chris Christie and the New Jersey General Assembly enacted bipartisan reform of the state's underfunded employee pension and health care systems. The Pension and Health Care Benefits Act requires all state employees, including judges, to contribute a higher percentage of wages to public benefit plans in which they participate. Soon after the Act passed, Superior Court Judge Paul DePascale sued the state, arguing that the Act violates Article VI of the New Jersey Constitution, which provides that the "salaries" of judges in active service "shall not be diminished during the term of their appointment" ... [Read now!]
Engage Volume 12, Issue 3, November 2011
November 22, 2011
The November 2011 issue of Engage is now online (exclusively a digital issue). Engage provides original scholarship on current, important legal and policy issues. Through its publication, we aim to contribute to the marketplace of ideas in a way that is collegial, measured, and insightful—and hope to spark a higher level of debate and discussion than we often see in today’s legal community. [Read now!]
Does Neutrality Equal Secularism? The European Court of Human Rights Decides Lautsi v. Italy
December 19, 2011
Religion can be an intensely personal activity. However, the idea that religion is only a private, personal devotion with no public political consequences is relatively new. For many nations in Europe, religion, in particular Catholicism, exerted an important influence over government and politics for centuries. The remnants of this influence still remain in anthems, oaths, and ideologies, not to mention architecture. However, with the rise of an ideology of “strict separation of church and state” in the European Union and the Council of Europe, it has been unclear how countries may incorporate their religious influences and histories into public life and expression. The case of Lautsi v. Italy in the European Court of Human Rights illustrates this struggle between secular ideology and religious faith and affiliation in the European context. The ultimate decision in the case acknowledges that “freedom of religion” need not result in, as the late Richard John Neuhaus put it, the naked public square. [Read more!]
Business Cases and the Roberts Supreme Court
December 6, 2011
The statement that the Supreme Court under Chief Justice Roberts, and more specifically the Court majority of five Republican-appointed Justices, has been unusually favorable, even biased, toward business interests is a familiar one in the media and much-repeated among liberal legal commentators (including, with respect to the 2010 Citizens United decision, the President of the United States). But is this true? Have the Roberts Court’s rulings in cases affecting business interests actually been especially favorable to those interests? This article seeks to answer this question. [Read more!]
Rebuilding the Ark: New Perspectives on Endangered Species Act Reform, Edited by Jonathan H. Adler
December 14, 2011
In many segments of the environmental community, the notion of touching the ESA is akin to skinning baby harp seals alive. So it is with some boldness that Jonathan Adler, a Professor of Law and Director of the Center for Business Law and Regulation at Case Western Reserve University School of Law, has pulled together a collection of essays centered around proposals to reform the ESA. [Read more!]
Hot News: The "Hot-News" Doctrine Is Hot Again! Or Is It?
December 14, 2011
Copyright law, like contract law, is deceptively complex. Just as the familiar elements of offer, acceptance, and consideration can give rise to endless disputes not easily resolved, the seemingly simple notion that an author has a time-limited monopoly on rights to a particular work of authorship gives rise to many questions. Given constantly-changing technology for fixing works of original expression in tangible media, ever-evolving means of copying and piracy, and repeated revisions to U.S. copyright law, both the courts and creators have had a difficult time understanding core concepts and keeping up with how the law is applied. Nowhere is this difficulty more apparent than in the Second Circuit’s attempts to keep the law of copyright straight in the area of “hot news.” [Read more!]
Two Guiding Trends in Contemporary Labor and Employment Law: Technology and Fairness
December 9, 2011
There are two primary trends guiding contemporary labor and employment law. The first is the recognition and incorporation of technology into existing law. Labor law has led the way with the National Labor Relations Board (NLRB or Board)’s increased focus on social media firings. The second is increased fairness measures at the expense of legal certainty. Employment law has led the way here, with recent regulations interpreting the Genetic Information Non-Discrimination Act (GINA) as well as judicial expansion of Title VII to include discrimination based on sexual orientation. [Read more!]
December 9, 2011
On 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!]
The States and the NLRB: A Study in Comparative Sovereignty
December 6, 2011
Under a system of government that diffuses power and makes institutional “[a]mbition . . . counteract ambition,” sudden power grabs by a federal agency are rare. Nevertheless, they do occur, particularly when they can be conducted “under the radar.” A lawsuit can be a very successful means for launching a power struggle without arousing much public attention. As Justice Scalia famously observed, most lawsuits involving the allocation of governmental power arrive in court “clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis.” [Read more!]
December 5, 2011
While some news reports indicate that discrimination against women on the basis of sex in college admissions is increasingly common, there has been relatively little public discussion about it—especially compared to the much more heated public debate concerning race-based affirmative action. Not surprisingly, therefore, there have been few attempts to study the extent of the problem systematically. One such attempt with which we are both familiar—a study by the U.S. Commission on Civil Rights of sex discrimination at nineteen colleges and universities in the mid-Atlantic states—was unfortunately abandoned for what appear to be political rather than substantive reasons. Although the fate of the Commission’s probe may in part be explained by the Commission’s institutional quirks, the muddled politics surrounding the attempted probe may reflect in microcosm the muddled politics of the broader national debate. In this article, we discuss those politics and suggest that the lack of attention the issue has received to date may be unfair. [Read more!]
December 1, 2011
The National Environmental Policy Act requires federal agencies to ascertain and evaluate the possible environmental effects of federally regulated energy infrastructure proposals. But this broad statutory requirement leaves great uncertainty as to which hypothetical risks of environmental harm must be evaluated, and which risks may be set aside as too contingent or otherwise improbable to merit review. Recent events—the Japanese tsunami that disrupted a nuclear power plant, for example, or the deepwater Gulf of Mexico oil spill—remind us that seemingly unthinkable disasters can occur, posing a significant threat of harm to the environment. But two recent court of appeals decisions have created a circuit split on the question of precisely how agencies should approach the possibility of low-probability, high-impact events—or, as they have come to be known, “Black Swans.” [Read more!]
December 1, 2011
In the past few decades, the practices and doctrines governing the interpretation and administration of the federal tax code have diverged somewhat from general administrative law doctrines and norms in several ways. No one doubts that the Administrative Procedure Act (“APA”) applies to federal tax administration. No one questions that Treasury regulations interpreting the Internal Revenue Code (“IRC”) are legally binding on all taxpayers. Nevertheless, while the standard of judicial review for most agency regulations that carry such legal force derives from Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., at least until very recently, many tax lawyers, the United States Tax Court, and some circuit courts maintained that an arguably less deferential standard articulated prior to Chevron in the tax-specific case of National Muffler Dealers Ass’n, Inc. v. United States applied to most tax regulations. [Read more!]
