Judicial Selection in Nebraska

May 8, 2012

Despite the asserted political influence in the current merit selection process in Nebraska, some maintain that the system can be reformed to meet its intended purpose. This paper identifies specific reforms that could reduce the amount of political influence and control by special interest groups, and establish a more transparent system with procedural safeguards, checks, and balances. These reforms fall under two broad categories: selection of the nominating commission members and conduct of commission proceedings. The goal of these proposed reforms is to enhance the integrity and accountability of the judicial selection process while increasing public respect for the judicial system and, thereby, the rule of law. [Read more!]

State Court Docket Watch Spring 2012

May 8, 2012

In an effort to increase dialogue about state court jurisprudence, the Federalist Society presents State Court Docket Watch. This newsletter is one component of the State Courts Project, presenting original research on state court jurisprudence and illustrating new trends and ground-breaking decisions in the state courts. This edition contains updates on important state court decisions in Wisconsin, Arkansas, Pennsylvania, Montana, Georgia, and California. [Read now!]

Can Someone Please Turn on the Lights? Bringing Transparency to the Foreign Corrupt Practices Act

April 3, 2012

Passed in 1977, the Foreign Corrupt Practices Act (“FCPA”) set out to achieve a laudable goal: to prevent U.S. companies and persons, when conducting business abroad, from corrupting the governments and people they meet. And who can argue with the notion that U.S. companies should not corrupt the governments of countries where they do business or worsen the prospects for citizens of countries whose governments are already corrupt? Unfortunately, that unobjectionable vision has virtually disappeared in a miasma of aggressive prosecutions by the Justice Department—with $2.95 billion in penalties collected since 2009. [Read more!]

A Religious Organization's Autonomy in Matters of Self-Governance: Hosanna-Tabor and the First Amendment

March 22, 2012

In the second week of January, the U.S. Supreme Court handed down its unanimous decision in Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission. The case involved a fourth-grade teacher, Cheryl Perich, suing her employer, a church-based school, alleging retaliation for having asserted her rights under the Americans with Disability Act (ADA). The Equal Employment Opportunity Commission filed the original suit, and the teacher intervened as a party. In the lower federal courts Hosanna-Tabor raised the “ministerial exception,” which recognizes that under the First Amendment religious organizations have the authority to select their own ministers—which necessarily entails not just initial hiring but also promotion, retention, and other terms and conditions of employment. Over the last forty years the ministerial exception has been recognized by every federal circuit to have considered it. Indeed, the exception overrides not just the ADA but also a number of venerable employment nondiscrimination civil rights statutes. Just who is a “minister,” however, has varied somewhat from circuit to circuit—and in any event the Supreme Court had never taken a case involving the ministerial exception. [Read more!]

The Philosopher in Action: A Tribute to the Honorable Edwin Meese III

March 22, 2012

In December 2011, former U.S. Attorney General Edwin Meese celebrated his 80th birthday. While his accomplishments are hardly unknown to the Federalist Society, Mr. Meese’s work in the Reagan Administration provides more than merely a list of accolades relegated to history. Through several interviews with Mr. Meese’s colleagues in the Reagan Administration, and presently at the Heritage Foundation’s Center for Legal and Judicial Studies, one finds that his achievements reveal a commitment to the realization of principles that transcend the politics of any period. Rather than simply concern himself with instant political advantage, Mr. Meese embodied Edmund Burke’s characterization of a politician: a “philosopher in action,” committed to taking rarefied intellectual concepts and transforming mainstream politics by implementing those ideas through government institutions. Interviews with Mr. Meese, Justice Samuel Alito, Judge Douglas Ginsburg, Judge Loren Smith, the Honorable T. Kenneth Cribb, Jr., Todd Gaziano, and Thomas Jipping reveal how the former U.S. Attorney General found a legal profession with little room for conservative analysis, and used the confluence of an inclined boss (Ronald Reagan) and Meese’s own personal commitment to conservatism to create a political movement that will outlast them both. Meese’s congenial leadership continues to facilitate new avenues of substantive growth for the conservative legal movement, including combating the growth of federal criminal law, and limits on congressional power. For these, and his many other achievements detailed herein, Americans owe him their thanks through analyzing his experiences in public life. This tribute strives to do just that. [Read more!]

(Mis)Applications of Behavioral Economics to Regulation: The Importance of Public Choice Architecture

March 22, 2012

Friedrich Hayek once said, “Unfortunately, the popular effect of this scientific advance has been a belief, seemingly shared by many scientists, that the range of our ignorance is steadily diminishing and that we can therefore aim at more comprehensive and deliberate control of all human activities. It is for this reason that those intoxicated by the advance of knowledge so often become the enemies of freedom.” This statement encapsulates a broad wariness of government intervention, even—and perhaps especially—intervention based upon scientific findings, into private enterprise. The problem, as Hayek points out, is that such control mechanisms, however scientifically informed, inevitably lead to unwanted consequences, often stifling the very creativity needed to foster the beneficial spontaneous order of the marketplace. [Read more!]

Bounty Hunters and the Public Interest - A Study of California Proposition 65

March 22, 2012

Adopted by California voters in 1986, Proposition 65 was a revolutionary measure in a number of respects. Although titled “Safe Drinking Water and Toxic Enforcement Act,” the scope of the law was much broader than water pollution. The goal of the law was to protect Californians from exposure to cancer-causing substances and reproductive toxins. In addition to prohibiting introduction of such chemicals into the water, the law also required warnings so people could choose to avoid areas where they might come in contact with chemicals known to cause cancer or reproductive harm. Immediately after passage, the new law required the state to compile a list of substances known to cause cancer and reproductive toxins. This list has now grown to nearly 900 different substances. Because the law mandates warnings that allow consumers to avoid exposure to these chemicals, backers of the measure argued that it would reduce the incidence of cancer and other health problems in California. [Read more!]

A Survey of Empirical Evidence Concerning Judicial Elections

March 14, 2012

In this paper, Chris W. Bonneau evaluates the arguments made by opponents of judicial elections. Focusing primarily on state supreme court elections (since that is the level of court where most studies have been conducted), though also discussing intermediate appellate courts and trial courts where appropriate, he evaluates the arguments of judicial reform advocates in light of empirical evidence. This paper presents a synthesis of the existing literature in this area, integrating the disparate findings by scholars into a single publication. [Read now!]

The Road to a National Curriculum: The Legal Aspects of the Common Core Standards, Race to the Top, and Conditional Waivers

February 16, 2012

Late in the afternoon on April 11, 1965, President Lyndon B. Johnson sat with his childhood school teacher, Mrs. Kate Deadrich Loney, on the lawn of the former Junction Elementary School in Johnson City, Texas. The reason for the meeting of a bespectacled retired teacher and her famous former pupil was the signing of the Elementary and Secondary School Act of 1965 (“ESEA”). With the President’s signature, the federal government’s role in elementary and secondary education began to increase rapidly, with Congress establishing the U.S. Department of Education (“Department”) in 1979. Today, the ESEA authorizes funding for key portions of school district budgets across the country. Despite this leverage, the Department has generally adhered to statutory limitations disallowing federal agency involvement in K-12 curriculum, courses, or instruction, focusing instead on issues such as aid for disadvantaged students, accountability, civil rights, and evaluation. Since 2009, this has changed: Actions taken by the Obama Administration signal an important policy shift in the nation’s education policy, with the Department placing the nation on the road to federal direction over elementary and secondary school curriculum and instruction... [Read more!]

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 Legislature 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!]