The Cornell Law School Federalist Society

News and Commentary

A Debate: The Future of Firearms Laws in the US

January 23rd, 2013 by Cornell Fed Soc

A Debate: The Obamacare Ruling

August 23rd, 2012 by Cornell Fed Soc

Abuse of Eminent Domain: In NY & Throughout the Nation

April 21st, 2012 by Cornell Fed Soc

Monday, April 23rd – 6:00–7:00PM - Room G85, Myron Taylor Hall

Scott G. Bullock from the Institute for Justice will discuss Kelo and governmental takings.

Congratulations to the new Federalist Society Board!

April 21st, 2012 by Cornell Fed Soc
The New 2012-13 Cornell Law Federalist Society Board:

Dan Hartman
Vice President
Ross Fox

Dean Caruvana
3L Rep
Cody Hersche
2L Reps
Pearl Hahn, Joshua Xiong

Why the Obamacare Case Shouldn’t Matter

March 21st, 2012 by Kirk Sigmon

As published in the Cornell Review, Vol. XXX, No. 7.  Full paper here.

Don’t let pundits fool you: the upcoming Supreme Court case on the Patient Protection and Affordable Care Act (“Obamacare”) won’t mean much, and those who believe otherwise are taking a big risk.

The upcoming Supreme Court case on Obamacare will review whether or not Congress has the power to enact an “individual mandate” – that is, a federal requirement that individuals purchase insurance – under Article I of the Constitution. Opponents to Obamacare argue that Article I does not empower Congress to pass a statute which requires that unwilling private citizens purchase healthcare insurance. Proponents of Obamacare argue that the individual mandate is justified on numerous grounds, including the Commerce Clause, the Taxing and Spending Clause, and even the Necessary and Proper Clause of the Constitution. If the individual mandate is found unconstitutional, the Supreme Court may also find that the individual mandate is “inseverable” from Obamacare – that is, that the entirety of Obamacare is unconstitutional because the entire statute is unworkable without the individual mandate.

The fact that the entirety of Obamacare could be held unconstitutional sounds like a big deal – and to some degree, it is. The Obamacare case will be the first time since the New Deal that the scope of Congressional power has been seriously questioned. Where the “New Deal Constitution” has been a thorn in the side of conservatives for decades, a repeal of Obamacare could very well mark the beginning of a “Post-Obamacare Constitution” focused on a smaller federal government, more states’ rights, and even a return to laissez-faire capitalism.

Still, there is an unfortunate fact about the Obamacare case conservatives must acknowledge: even if the Supreme Court strikes down Obamacare, Democrats can still find ways to achieve the same result via alternative means. Cornell Law professor Michael Dorf has argued that the Congress could easily effectuate the individual mandate even if the current wording of the individual mandate itself was struck down by re-structuring the mandate as a tax, invoking the spending power, conditioning statewide implementation of an individual mandate on the receipt of Medicaid, or even by carefully re-wording the statute to make it comport with the Commerce Clause. In other words, the determination that the current individual mandate is unconstitutional under Article I would not necessary stop Democrats from finding other ways to manipulate the economic and private affairs of citizens. For conservatives, this could all but nullify the elation of a court ruling striking down Obamacare: a tactical victory possibly made moot by a strategic reversal.

Conservatives should be very careful not to be lured by the siren’s song of a potential victory onto the rocks of political failure. Obamacare is not President Obama’s only failure. If conservatives too readily use Obamacare as the one and only avenue for attacking President Obama, that strategic miscalculation could lead to the ultimate irony – the reelection of President Obama. Placing too much emphasis on Obamacare as a core conservative issue could very well delude conservative foot soldiers into believing that a victory at the Supreme Court would mean that the war against big government is over – and an inducement of such apathy would be just as fatal for conservatism as an outright loss at the Supreme Court would be.

Let’s not get swept away in the inevitable flurry of debate over the Obamacare case. The best way to truly restrict the size of government is to gain control in the Congress and in the Presidency. Supreme Court cases will unquestionably help this effort, but they are not the sole progenitor of political control. To believe otherwise sets one up for delusion – or, worse, failure.

Don’t let pundits fool you: the upcoming Supreme Court case on the Patient Protection and Affordable Care Act (“Obamacare”) won’t mean much, and those who believe otherwise are taking a big risk.

Free Market Environmentalism: A Debate

March 21st, 2012 by Cornell Fed Soc

Tuesday, March 27 at 12:30pm – McDonald Moot Court Room (Rm. 390)

Prof. David M. Driesen from the Syracuse U. School of Law will debate Ms. Becky Norton Dunlop from the Heritage Foundation on the topic of Free Market Environmentalism.

Langbein Meets Letterman: Top Ten German Advantages in Civil Justice

February 6th, 2012 by Cornell Fed Soc

Thursday, Feb. 16 at 5:00pm in G85

Criticism of US civil justice abounds, but ideas for fixes are few and unproven. Professor James Maxeiner (CLS ‘77) shows ways proven to work. These foreign ways are consistent with our ideals and with what we identify as best practices. Often, these foreign fixes are our best practices actually implemented.

Prof. Maxeiner’s speech will be predominantly related to his new book, Failures of American Civil Justice in International Perspective. Failures of American Civil Justice in International Perspective “provides a comparative-critical introduction to civil justice systems in the United States, Germany, and Korea. It shows the shortcomings of the American system and compares them with German and Korean successes in implementing the rule of law”.

Buckley: William F. Buckley Jr. and the Rise of American Conservatism

January 26th, 2012 by Cornell Fed Soc

Monday, Dec. 30 at 4:00pm in the Saperston Student Lounge

Professor Carl T. Bogus of the Roger Williams University School of Law will discuss his new book Buckley: William F. Buckley Jr. and the Rise of American Conservatism.

William F. Buckley was an eloquent writer and brilliant polemicist whose works are still required texts for conservatives. His TV show Firing Line and his campaign for mayor of New York City made him a celebrity; his wit and zest for combat made conservatism fun. But Buckley was far more than a controversialist. Deploying his uncommon charm, shrewdly building alliances, and refusing to compromise on core principles, he almost single-handedly transformed conservatism from a set of retrograde attitudes into a revolutionary force. Scholar Carl T. Bogus gives us the most authoritative biography ever published of this vital, larger-than-life figure.

Reviews and Commentary on Buckley

“Remarkably perceptive… Mr. Bogus rises to the occasion, crafting a formative biography and history that is not only interesting and relevant, but an essential study of Buckley and the post-World War II conservative movement. This is an important book. Anyone, of any political stripe, interested in learning more about the rise of conservatism as a movement in the mid-20th century needs to read Carl T. Bogus‘ Buckley.”—Washington Times

“[Bogus’] discussion of the various intellectual players is well informed, and he makes a useful contribution to understanding the contending variations of modern American conservatism.”—New York Times Book Review

“Worth reading”—James B. Burnham, Pittsburgh Post-Gazette

“A thoughtful blend of biography and intellectual history … Bogus vividly encapsulates how radically Buckley ‘changed America’s political realities … a feat so great that it is almost impossible to overstate.’”—Publishers Weekly

“This is an insightful book that will please anyone interested in midcentury American history and politics. Anyone serious about political philosophy will learn from it. Highly recommended.”—Library Journal (starred)

“Carl T. Bogus has given us a very fine biography of William F. Buckley Jr., the founder and central figure of the American conservative movement. Without Buckley we might not have had the Reagan presidency. As editor of National Review, columnist, author of many books, and host of the TV show Firing Line, Buckley seemed to be everywhere. Nothing like this had happened in American history.”—Jeffrey Hart, Professor of English Emeritus, Dartmouth College; former senior editor, National Review; author, The Making of the Conservative Mind; National Review and its Times

“I found this book to be well-written,well-informed, and fair minded. Carl Bogus is very solid on the various forms of conservatism in the 50s and 60s and Buckley’s role in defining his version. He also includes terrific, lengthy passages on Vietnam, civil rights, Reagan, Mayor Lindsay, Ayn Rand, and Russell Kirk.”—James Patterson, Brown University, Bancroft Prize-winning author of Grand Expectations: The United States, 1945–1974

“Carl Bogus has given us a terrific new book on William F. Buckley that is neither hagiography nor ideological axe-grinding. Buckley is a serious and thoughtful discussion of the nature of modern American conservatism and Buckley’s role in shaping it. Liberals and conservatives will both gain immensely from this readable and entertaining work of scholarship.”—Vincent J. Cannato, author of The Ungovernable City: John Lindsay and his Struggle to Save New York
“not a traditional cradle-to-grave biography but an ongoing conversation about and argument with Buckley”—Kirkus

See Also:


SOPA, the biggest threat to modern free speech

December 28th, 2011 by Kirk Sigmon

Note: The vast majority of the non-essential websites I run or host are being redirected to this page for the entirety of January 18, 2012. This is my form of participation in an internet-wide protest, of which Google and Wikipedia are also participating. Normal services will resume on the 19th.

The modern Internet is a battlefield. One end of the battlefield is comprised of companies and individuals owning intellectual property — from copyrights on video games and movies to likeness rights and the like. On the other end of the battlefield is the Internet — that is, more specifically, everyday people who use the Internet for information, entertainment, and for communication. The former group wishes to control the latter. And they may have their wish.

The Stop Online Piracy Act, often abbreviated as SOPA, is essentially a bill that grants the Attorney General the right to actively hunt down websites that “engage[] in, enable[], or facilitate[]” the infringement of intellectual property. The SOPA also allows the Attorney General to prosecute website owners who fail to “confirm . . . a high probability” of IP theft on their website or who “operate[] [a] U.S.-directed site with the object of promoting, or has promoted, its use to carry out acts that constitute a violation” of intellectual property law. The SOPA additionally gives the Attorney General the right to sue a foreign website in rem, seemingly regardless of whether or not the website is in fact hosted or maintained within the US. Once the Attorney General has his target in sight, be it in personam or in rem, the Attorney General may then demand that search engines, ad networks, and payment networks stop serving the website in question.

But all of this may be unnecessary, because the SOPA seems to encourage Internet companies to take the law into their own hands. SOPA not only grants ISPs and other Internet companies immunity for voluntarily disassociating themselves with websites that violate IP law, but it also grants such companies complete immunity from liability when they refuse to associate with websites that “endanger[] the public health,” which it generally defines as a website “offering, selling, dispensing, or distributing any prescription medication, and does so regularly without a valid prescription [or that is adulterated or misbranded].”

It gets even more extensive. SOPA criminalizes the streaming of copyrighted work — that is, the live (or, ostensibly, delayed) provision of music, movies, or the like in violation of intellectual property law.

So why should we care about SOPA? The answer is quite simple: SOPA is an attempt to quite literally destroy the Internet as it exists today. It is an attempt to turn the Attorney General into an arm of Intellectual Property owners, it is an attempt to create a veritable Internet-based “red scare” whereby Internet companies are encouraged to refuse to do business with one another, and it is an attempt to limit the innocent activity of Internet users in order to line the pockets of select few copyright owners.
The interests of a select few influential copyright holders should not trump the innocent and otherwise legal utilization of the Internet by millions of Americans. To do otherwise would trample on the very foundations of free speech and free markets that our entire country rests upon.

First off, SOPA attempts to turn the Attorney General into a weapon of select owners of intellectual property, using him or her as a proxy for the restriction of free speech. Where the SOPA would allow the Attorney General to punish websites that “engage[] in, enable[], or facilitate[]” piracy, virtually any website could be shut down: YouTube (as it regularly facilitates the inadvertent infringement of movie copyrights), Facebook (song lyrics, pictures, etc), Google (cached versions of images, providing access to links to .torrent files, etc), Reddit (linking to various copyrighted works, pictures, etc), and even Twitter (trademarked phrases, photos, links to pirated material, etc).

The unfortunate result of such breadth would not be the dismantling of the Internet, however — it would be impermissible forms of discrimination based upon the nature and content of speech on the Internet, not to mention discrimination based upon political connections and power. Don’t like a political website that inadvertently placed a copyrighted photo on their forums? Get someone to prosecute. Don’t like a rival video hosting website or social media network? Paint them as a haven for online pirates until someone prosecutes. Want to gain an one-up on a rival start-up website? Call in some political favors and prosecute (and enjoy the added benefit of making all financial institutions refuse to do business with your competitor). The possibilities are as endless as they are frightening.

Second, SOPA attempts to create an Internet-based “red scare” whereby individual companies are tasked with disassociating themselves from websites that allegedly “engage[] in, enable[], or facilitate[]” piracy. Where individual Internet-based companies are tasked with finding out who not to do business with, they must not only spend the money and time to worry about such matters, but the aforementioned frightening possibilities become more real and more arbitrarily applied. Paranoid search engines may not wish to deal with companies that legally toe the lines of intellectual property law in order to enjoy the SOPA’s promise of immunity.  Perhaps even worse, under the guise of adhering to copyright law, nefarious ISPs may attempt to censor websites and programs they do not like in order to prevent consumer backlash against them or in order to curry favor with other companies.

Third, the entirety of SOPA appears to be an attempt to create further lucrative monopolies in the hands of intellectual property holders. The best example of this dynamic comes from the prohibition on streaming, which I have written about before in the context of a predecessor bill. Where IP-holding parties can use the Attorney General to prosecute those making innocent “Let’s Play” videos and streams of themselves playing video games, they gain two advantages: they not only can force the latter parties to pay for rights to do what they have already been doing (virtually harm-free) for free, but they can do so via the mechanism of the US Government, meaning the cost of enforcement for them is nil.  Where the maximum punishment for streaming a new video game under the SOPA would be ten years, the incentive to pay up would be strong.  Similarly, the wide breadth of the SOPA’s primary engage/enable/facilitate provision indicates that copyright owners may be able to use the threat of prosecution to extort money from websites and entities that merely facilitate other people to violate copyright law.

Note that there are many, many other problems with SOPA that much better authors have identified — I’m merely scratching the surface.

So what does an Internet post-SOPA look like?  The Mad Max movies come to mind.  Gone would be all websites currently toeing the line of IP law, including websites that regularly facilitate copyright infringement like YouTube.  Online piracy would unquestionably still exist, though most pirates would switch to decentralized BitTorrent networks and proxy servers.  Surviving Internet companies spend grandiose amounts of time and money searching out various IP infringements on or related to their own websites and services, refusing to do business with people and businesses that even “look funny” regardless of whether or not these people and businesses would actually be found guilty in a court of law.  Enjoyable and relatively harmless hobbies like “Let’s Play” would be dead, and various basement-dwelling Internet video makers like the so-called “Angry Video Game Nerd” would be thrown into jail for ten years.  Select IP holders — SOPA supporters like Sony, Nintendo and, NBC in particular — would find themselves even richer as they utilize the criminal law to patrol the use and enjoyment of their own works.  Anyone with political power could get a website with content they disliked prosecuted for unwitting copyright violations.  Foreign website owners who have never seen or touched the shores of the United States would find themselves subject to criminal prosecution in the US for no reason other than American use of their website.  And, to make things even worse, a Congress convinced it can regulate the Internet through the SOPA would likely find it appropriate to create new and even more draconian laws regulating the Internet — from content regulations to access regulations and beyond.

In short, the SOPA is a bill that is bad for the Internet, bad for free speech, bad for business, and bad for America.  The interests of a select few influential copyright holders should not trump the innocent and otherwise legal utilization of the Internet by millions of Americans.  To do otherwise would trample on the very foundations of free speech and free markets that our entire country rests upon.

Current Second Amendment Litigation with Mr. Alan Gura

November 28th, 2011 by Cornell Fed Soc

Tuesday, November 29 at 6:00pm in the Room G85
Mr. Alan Gura, litigator of famous Supreme Court Second Amendment cases DC v. Heller and McDonald v. Chicago will speak on his current Second Amendment cases in NY and across the US.

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