Monday Round-up

The stakes for the outcome of Citizens United and the McCain-Feingold law have been raised after the D.C. Circuit’s decision last Friday in Emily’s List v. FEC. The Washington Post, the New York Times, the Blog of the Legal Times and Election Law Blog each analyze the appellate opinion, which struck down federal campaign finance regulations that restricted the ability of independent political groups to fund election-related activities. The three-judge panel followed the Supreme Court’s ruling in Federal Election Commission v. Wisconsin Right to Life to hold that groups such as MoveOn.org or Swift Boat Veterans for Truth have a First Amendment right to raise and spend money for elections, as long as they do not coordinate their activities with a candidate or a party. Rick Hasen suggests that this ruling could lead to a “more negative campaign season,” as interest groups tend to run more negative ads than political parties do.

The New York Times’ Adam Liptak covers United States v. Stevens (08-769), which will be argued before the Court on Oct. 6.  The Court will assess if a federal law prohibiting dogfighting videos or other depictions of cruelty to animals is unconstitutional on First Amendment grounds. The last time the Court declared a class of speech unprotected by the First Amendment was in the 1982 child pornography case New York v. Ferber. Liptak also has a book review in the Sunday Times on a new biography of Louis Brandeis.  He calls the biography “long, stately and satisfying,” but comments that Brandeis “never really comes to life in its pages.”

Wall Street Journal Law Blog addresses the tensions in sports and labor law circles over the American Needle Inc. v. NFL, et al (08-661) case (argument date unscheduled), which will test whether the National Football League’s exclusive apparel licensing deal with Reebok violates antitrust rules. The NFL–joined by the National Basketball Association and the National Hockey League–wants the Court to uphold their position that the 32 teams in the League make up a single entity, do not compete with each other economically, and are exempt from section one of the Sherman Act. The players union hopes the Court will rule narrowly and leave labor bargaining out of its decision on marketing and licensing practices. The case may have implications for the impending conflict between the NFL and the Players Association on its collective bargaining agreement.

The Court’s decisions in OT08 are still making news. In the National  Law Journal, Tony Mauro discusses the plaintiffs bar’s continuing efforts to overcome the heightened standards for initial trial pleadings set up by the Court’s decision last Term in Ashcroft v. Iqbal (07-1015). The Supreme Court’s decision has had an almost immediate impact in the federal courts, as defendants’ “Iqbal motions” to dismiss have produced “more than 1,500 district court and 100 appellate court decisions.”  A Senate bill introduced by Sen. Arlen Specter and a possible bill by the House would return pleading standards to their pre-Twombly status. Another approach Iqbal opponents may take is advocate changing the Federal Rules of Civil Procedure, which would be a lengthy process.

The real world implications of a perhaps higher profile OT08 case, Ricci v. DeStefano, are covered by the Chicago Tribune. The Court’s decision has left employment lawyers and civil service agencies “betwixt and between,” uncertain of how to proceed using multiple choice questioning and promotion exams. The Tribune focuses on testing companies, particularly those who designed the New Haven firefighters exam, and the impact Ricci has had on their business and test making practices.

On broader issues, Jamal Greene, guest-posting at Balkinization, discusses the success of originalism as a conservative intellectual movement and argues that progressive intellectuals cannot expect to effect similar doctrinal changes. A coalescent progressive legal theory “will not likely resonate with traditional conceptions of the judicial role.”

Ilya Somin continues the debate at Volokh Conspiracy on the constitutionality of Obama’s health care plan. He says while current precedent does not indicate that Congress is exceeding its power, a “correct interpretation of the Commerce Clause” would. The Court’s holdings in Gonzalez v. Raich would justify a federal mandate for people to buy health insurance, but Somin believes current doctrine on the Commerce Clause is wrong.

C-SPAN has video of former Associate Justice David H. Souter’s first public speech since his retirement, at Harvard Law School for Constitution Day. The Daily Northwestern features an article on Justice Ruth Bader Ginsburg’s visit to Northwestern University Law School last week.