Scholarship Newsletters

In Summer 2021, our chapter began a series of scholarship newsletters. Each issue starts by highlighting the outstanding work of our students and on-campus speakers, before profiling the major judicial, legislative, executive, and scholarly developments that are animating discourse and debates within our membership. We provide these newsletters in the name of provoking thought and discussion, not to take a policy position on any issue. For questions, corrections, or additions, please contact us at our chapter's email address.

 
 
 
 

July 2021

  • Student Scholarship & Outstanding Achievements

    Elise Kostial

    Elise Kostial, one of our Chapter’s current Executive Vice Presidents, was awarded the A. Leon Higginbotham/Benjamin N. Cardozo Prize for the best preliminary round brief in the 2020-2021 Morris Tyler Moot Court of Appeals. Elise was one of eight semifinalists in the Moot Court competition this year, in which she argued Department of Justice v. House Committee on the Judiciary. The case concerns a congressional application for the grand-jury material arising out of the investigation into Russian interference in the 2016 presidential election led by Special Counsel Robert Mueller. The House sought to obtain otherwise confidential grand-jury material under the “judicial proceeding” exception of Federal Rule of Criminal Procedure 6(e). The question before the Court is whether an impeachment trial constitutes a “judicial proceeding” for the purposes of the Rule, so that a congressional subpoena may be “preliminary to” or “in connection with” the proceeding. Congratulations Elise!

    Zachary J. Lustbader

    A Note by Zachary J. Lustbader ‘21, one of the Executive Vice Presidents of our Chapter last year, was published in Volume 130, Issue 7 of the Yale Law Journal. His note, Title 18 Insider Trading, argues for a general theory of insider trading liability under the fraud prohibitions contained in Title 18 of the U.S. Criminal Code. Zach argues that the current doctrine around insider trading liability grounded by SEC Rule 10b-5 lends itself to inconsistent application by judges and prosecutors. He argues, alternatively, for a new regime which classifies insider trading as embezzlement under Title 18, rather than as securities fraud under 10b-5. For this piece, Zach also won the Colby Townsend Prize for the best paper by a second-year student and the Judge Ralph K. Winter Jr. Prize for the best student paper written in corporate law. His Note can be found here.

    Holden Tanner

    Holden Tanner ’21 recently finished a paper titled Constitutional Norms in Originalist Adjudication being circulated for publication. Holden was the Vice President of Academic Affairs last year. In this paper, Holden argues against the prevailing inclination among originalists and textualists to disregard any role for norms in judicial interpretation and focus exclusively on text and intent. Alternatively, he argues that a focus on norms will equip judges with a useful tool that can bolster originalist jurisprudence and help inform originalists on the role of forms and limits of originalist jurisprudence. Norms can play an important role in in key areas of adjudication, such as workability analysis in stare decisis consideration and understanding the role of prudential influences in constitutional construction. Holden’s paper can be found here.

    Ben Daus

    Ben Daus, 2021 graduate of our Chapter, was published in the Journal of National Security Law & Policy this past semester. His article, The Militia Clauses and the Original War Powers, explores how the Militia Clauses shaped the original War Powers. He argues that the Militia Clauses both empowered the Federal Government at the Founding, while simultaneously providing Congress, the states, and citizens with both functional and formal checks on the Executive’s use of the War Powers. In the spirit of Prof. Akhil Amar, Ben argues that the militia represents an American constitutional ethos that may aid our application of the War Powers to changing times. His piece can be found here.

    Ben Silver & Michael “Motti” Slomovics

    The Yale Law & Policy Review published an article inter alia written by 2021 graduate and chapter members Michael Slomovics and Benjamin Silver. Their article, Retiring the 401(k): A New Framework for Retirement Savings argues for eliminating the traditional and Roth 401(k) account completely by a certain date to be determined by Congress in order to expand access to tax-advantaged retirement savings for middle- and lower-class workers. They propose an alternative regime which consists exclusively of traditional and Roth Individual Retirement Accounts and argue for raising the current contribution limitations for IRAs. Michael and Ben’s piece can be found here.

  • Speakers

    The Yale Federalist Society hosted a characteristically successful speaker series last year under very uncharacteristic circumstances. Although we were required to move entirely to virtual platforms for last year’s speaker series, the quality and attendance of our events did not suffer, due to the hard work of our events team, led by Zack Austin, Katie Mahoney, and Cameron Silvergate. Our five most attended events last year were:

    Natural Law, God, and Human Dignity with Professor Robert. P. George of Princeton University.

    • Prof. George’s most recent book, Mind, Heart, and Soul: Intellectuals and the Path to Rome, can be found here.
    • Fellow natural lawyer and former student of George, Sherif Girgis ‘16 was recently hired as an Associate Professor of Law at Notre Dame Law School.

    What Offenses Rise to the Level of Being “High Crimes and Misdemeanors?” A Debate Between Professors Akhil Reed Amar and Alan Dershowitz.

    • See Prof. Amar’s new podcast, Amarica’s Constitution.
    • Also check out Prof. Amar’s latest book, The Words that Made Us: America’s Constitutional Conversation, 1760-1840.
    • See Prof. Dershowitz’s latest book, The Case Against the New Censorship: Protecting Free Speech from Big Tech, Progressives, and Universities

    National Security Challenges Facing the Next Administration with Ambassador John Bolton.

    • See Ambassador Bolton’s latest book, The Room Where It Happened: A White House Memoir.

    From YLS to Zoom Law School: How COVID will Change the Legal Profession with David Lat of Above the Law and Prof. Linda Greenhouse.

    • See Prof. Greenhouse’s most recent book, Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court.

    Criminal Justice by the People with Judge Stephanos Bibas of the U.S. Court of Appeals for the Third Circuit and Professor Tracey Meares.

    • For an exceptional template for originalist judges to follow, see Judge Bibas’ majority opinion in Vorchheimer v. The Philadelphia Owners Association here.
    • See Prof. Meares’ forthcoming paper, Policing as a Public Good: Reflecting on the Term 'To Protect and Serve' As Dialogues of Abolition.
  • SCOTUS Watch

    Fulton v. City of Philadelphia

    In a surprisingly unanimous opinion, the Court ruled that the City of Philadelphia’s nondiscrimination mandate, barring foster homes from basing decisions on which foster parents to partner with on protected status, violated the Free Exercise rights of Catholic Social Services because the rule’s numerous exemptions deemed it not generally applicable.

    • However, as Thomas Berg and Douglas Laycock write, cities can rewrite similar laws to fall within Smith’s standards.
    • The Court did not revisit Employment Division v. Smith, leaving open a major legal debate in Originalist and Textualist circles. Justice Alito’s lengthy concurring opinion, joined by Thomas and Gorsuch, may serve as a blueprint for revisiting Smith in the future, writes Andrea Picciotti-Bayer.
    • In total, five Justices signaled willingness to revisit the case. Justice Barrett wrote a concurring opinion, joined by Kavanaugh, stating that revisiting Smith was unnecessary here, but the Court should be weary of replacing it without having a coherent solution ready.

    Nestle v. Doe

    The Court ended a decade-long human rights lawsuit this term and held 8-1 that Nestle USA could not be held liable under the Alien Tort Statute, which the Court previously held does not rebut the presumption against extraterritorial application, in Kiobel v. Royal Dutch Petroleum Co. The Court did not address corporate liability under the ATS, however.

    • Ilya Shapiro and his colleagues at CATO issued a brief in support of Nestle and argued along with Claire DeLelle that the ATS should be applied very narrowly and applauds the Court’s decision.
    • Prof. William Dodge of UC Davis School of Law argues that this case was wrongly decided and could prevent large swaths of future human rights litigation. The two will debate in a Courthouse Steps Decision Teleforum on July 6, register here to watch.
    • This case holds a special place for half of the members of the Class of 2023, who had to write a memo about this case in their Civil Procedure course.

    California v. Texas

    In what many believe may be the last challenge to the Affordable Care Act to reach the Court, the Court ruled 7-2 that the plaintiffs lacked standing to challenge the ACA.

    • For a discussion about the decision’s implications, listen to this podcast featuring Prof. Jonathan Adler of Case Western Reserve University School of Law and Mario Loyola.
    • For commentary on this case and Fulton, register for the Tulsa Lawyers Chapter’s 9th Annual Supreme Court Round Up.

    Mahoney Area School District v. B.L.

    SCOTUS held 8-1 that a high school’s suspension from the school cheerleading team of student Brandy Levy for posting vulgar messages on Snapchat violated her right to free speech.

    • For a discussion on this decision by Prof. Michael R. Dimino of Widener University Commonwealth Law School, see this podcast.
    • As Ilya Shapiro writes, this case garnered support for free speech across ideologically diverse groups, with some seeing this as a victory for conservative advocates of free speech on college campuses.
    • Prof. Justin Driver of YLS writes that this decision marks “the most significant legal decision involving education in decades.”
    • For a summary of the Levy’s argument, see this opinion piece by the lawyer who represented her before the Court.
    • For an in-depth analysis on Justice Alito’s concurrence, see this piece by Ed Whelan.

    Cedar Point Nursery v. Hassid

    In a 6-3 decision, the Court held that a California regulation granting labor union representatives the right to enter the premises of agricultural businesses to encourage unionization among workers constitutes a per se physical taking and violates the 5th Amendment’s Takings Clause.

    • For analysis of the decision, see this blog post by Adam Forester Griffin.
    • See also this Courthouse Steps Decision Teleforum featuring Wen Fa, the attorney who represented Cedar Point Nursery.
    • Prof. Richard A. Epstein writes that this may be the most significant takings decision by the Court in decades.
    • Jess Bravin of WSJ writes that this decision will devastate Cesar Chavez’s farmworkers movement.
  • Legislation & Executive Appointments

    Repeal of the Authorization for Use of Military Force?

    A bill proposed by bipartisan group of Representatives to repeal the 2002 Authorization for Use of Military Force was passed by the House June 17 by a vote of 268-161 and will be voted on by the Senate in July.

    • The AUMF authorizes the President to “use all necessary and appropriate force,” without Congressional approval, against entities or individuals that he determines were involved in or aided the 9/11 attacks on our nation. Since 2001, the AUMF has been used to authorize force in our successful military efforts against the Islamic State and other 21st Century terrorist organizations.
    • The AUMF has been criticized by originalist scholars, such as UVA’s Saikrishna Bangalore Prakash and CATO’s Gene Healy, for granting the Executive branch too much power.
    • Textualists critiques levy charges of abuse against Presidents, claiming that the AUMF must be read only to permit the use of force against countries, organizations and individuals directly associated with or aiding in the 9/11 attacks. Still, many conservative lawmakers fear that repealing the AUMF without a comprehensive replacement ready to be put in place will hamstring our efforts in the Middle East against entities like ISIS and Iran.
    • For a dated but still applicable defense of the AUMF, see Prof. John Yoo.

    United States Innovation and Competition Act

    The Senate recently passed a bipartisan bill introduced by Sen. Chuck Schumer intended to spur technological innovation to help the U.S. maintain its technological advantage over China. The bill received considerable bipartisan support, passing in a vote of 68 to 32.

    • The bill will establish a Directorate for Technology and Innovation within the National Science Foundation and facilitates the investment of over $200 billion in technology initiatives such as semiconductor manufacturing, 5G innovation, and “technology hubs” in rural regions. For a comprehensive outline, see here.
    • Conservative criticism of the bill has come from both sides. Libertarians such as CATO’s Scott Lincicome see it as initiating industrial policy which allows too much government direction over private industry.
    • Others, such as member of the House Republican Study Committee, argue for more protective measures against China, like intellectual property protection and increased sanctions against CCP-affiliated companies. Still, the bill was passed with considerable bipartisan support.

    Lina Khan (’17) Appointment to FTC Highlights Conservative Divide on Antitrust Law

    YLS alumnus and harsh critic of big tech Lina Khan was confirmed as the Chair of the FTC on June 15 by a vote of 69-28 and subsequently sworn in. Khan rose to national prominence while still a student at YLS, when her article Amazon’s Antitrust Paradox, 126 Yale. L.J. 564, calling for a hawkish reformation of antitrust law, made waves; she has continued her sharp criticism of big tech since then.

    • 21 Republicans voted in favor of her confirmation, while all 28 dissenting votes came from Republicans. To many, the split on Khan’s confirmation represents a broader divide within the conservative legal community.
    • Traditional Chicago School scholars, such as Prof. George Priest, argue that tech giants such as Amazon and Facebook have produced tremendous value for society, and caution against using antitrust law as a political weapon.
    • Alternatively, a new brand of populist conservatism led, among others, by YLS alum J.D. Vance, has taken a stance that is in some respects aligned with Khan’s. Vance, who just announced his official run for Senate in Ohio, has led a rising conservative intellectual movement that seeks to fashion the Republican party as the champion of America’s working class. A movie based on his bestselling book, Hillbilly Elegy, was also released in 2020.
  • Secondary Literature

    Common Good Constitutionalism

    The pandemonium from HLS Professor Adrian Vermuele’s essay in The Atlantic titled “Beyond Originalism” is still active. Vermuele ignited a debate over the compatibility of conservatism and originalism; here are a few interesting responses to his provocation of conservative legal scholars:

    • Gerald V. Bradley, Moral Truth and Constitutional Conservatism, 81 La. L. Rev. 1317 (2021); arguing for conservative constitutionalists to adopt a theory of jurisprudence that recognizes objective moral truths that extend beyond the Constitution’s original public meaning. See article here.
    • Josh Hammer, Common Good Originalism: Our Tradition and Our Path Forward, 44 Harv. J.L. & Pub. Pol’y 917 (2021); arguing for a jurisprudential theory of substantive conservatism rather than textual proceduralism. See article here.

    Original Law Originalism

    Since Professors Will Baude and Stephen Sachs, among others, have begun arguing for original law originalism, or the notion that legal scholars should not necessarily look to the original public meaning of laws and instead look to the original law itself, other scholars have begun to take these arguments seriously. Below are some interesting applications of this budding legal theory:

    • Ilan Wurman, The Second Founding: An Introduction to the Fourteenth Amendment (Cambridge 2020); see book here.
    • John Finnis, Abortion is Unconstitutional, First Things, April 2021; arguing that the Equal Protection Clause makes abortion unconstitutional; see article here.
    • C’Zar Bernstein, Fetal Personhood and the Original Meaning of ‘Person’ in the Constitution, 26 Tex. Rev. L. & Pol. (forthcoming); arguing that Finnis’ argument is plausible under ordinary meaning originalism but fails under Baude and Sachs’ conception of original law originalism. Download article here.