The Federalist Society has been honored to publish 240 fantastic blog posts from many talented contributors over the past year! While each and every one of these posts contains helpful information, insightful analysis, and excellent writing, we have selected a handful of highlights and favorites that readers can revisit as 2024 comes to a close. Many thanks to our contributors and readers, and we look forward to another wonderful year of legal blogging in 2025!

 

Most Read Posts

Are Elon Musk’s Petition Payments Legal?, by Mike Dimino

Elon Musk’s America PAC has offered $47 to all registered voters in Arizona, Michigan, Nevada, North Carolina, and Wisconsin, and $100 to registered voters in Pennsylvania, for signing a petition that “pledg[es] . . . support for the First and Second Amendments.” Is this offer legal?

A Brief Guide to the 2023 Amendments to the Federal Rules of Evidence, by Mark Behrens

Amendments to Federal Rules of Evidence 702, 106, and 615 took effect on December 1, 2023. These rules address testimony by expert witnesses, the “rule of completeness,” and excluding witnesses from the courtroom and preventing those witnesses from accessing trial testimony. The amendment to Rule 702 has received the most attention because it is intended to correct more than two decades of missteps by many federal courts.

Free Speech Coalition v. Paxton Debate

Free Speech Coalition v. Paxton: Age Verification for Porn Sites Is Commonsense Policy and Constitutionally Sound, by Adam Candeub

Free Speech Coalition v. Paxton: Regulating Access to Adult Content Doesn’t Justify Flouting the First Amendment and Long-Established Precedent, by David Rubin

Claudine Gay’s ‘My Truths’ v. the Declaration’s ‘Self-Evident Truths’, by Randy May

As long as Gay, and those like her, continue to see the world primarily through the lens of personal “my truths,” rather than through the lens of universal self-evident truths that are not context dependent, they will fail to comprehend why they are an impediment to addressing America’s deep philosophical divisions in a principled way.

Is the Corporate Transparency Act Unconstitutional?: Government Appeals a District Court Ruling That Said “Yes,” With More Challenges In Progress, by Jack Park

On March 1, 2024, Judge Liles Burke in the Northern District of Alabama held in National Small Business United v. Yellen that the Corporate Transparency Act (CTA)—enacted by Congress as a 21-page part of the 500-page 2021 National Defense Authorization Act—was unconstitutional. He concluded that the Act “exceeds the Constitution’s limits on the legislative branch and lacks a sufficient nexus to any enumerated power to be a necessary or proper means of achieving Congress’s policy goals.” In so doing, Judge Burke rejected the government’s reliance on its foreign affairs and national security powers, the Commerce Clause, and its tax powers.

 

Editor’s Picks

Best Defense of the Judiciary

The Judiciary Is Not Just Another Political Branch, by Randy May

All those who care about the rule of law, whether on the Left or the Right, should make a conscious effort to rebuff attempts to label the Supreme Court or its Justices on a partisan basis. This characterization delegitimizes the Court’s work in the mind of the public.

Best Originalism

Understanding Justice Thomas and Justice Barrett’s Fight Over History, by GianCarlo Canaparo and Curtis Herbert

Unsurprisingly, detailed historical and analogical reasoning rarely makes headlines. It’s not inherently political, it’s hard to condense into 280 characters, and it taxes readers’ attention spans. It is, however, the normal task of judging and a frequent source of good-faith disagreement. One of Barrett’s and Thomas’s strengths is that their legal disputes mostly surround methods and analogies, bringing those to the fore and ensuring that the “commonplace task” of judging persists in the marble palace at One First Street.

Best History

The Lasting Importance of the Case of Proclamations, by Ken Davis

There are many milestones on the road that traces the centuries-long work of the people in the Anglosphere to establish constitutional government and the rule of law. Some milestones, like our Declaration of Independence on July 4, 1776, are well known and widely celebrated. Some, like the signing of the Magna Carta or the enactment of the English Bill of Rights, are widely recognized to be important, but their anniversaries are often overlooked. And regrettably, some important milestones are largely forgotten. One of these is the Case of Proclamations, decided during the Michaelmas Term, or fall term, of the King’s Bench in 1610 during the reign of James I.

  • For a longer read about history and law in the conservative tradition, read Andrew Graham’s book review in the Federalist Society Review, The Wisdom of Our Ancestors

Best Separation of Powers  

The Student Loan Forgiveness Saga: How the Litigation Played Out and What’s Next, by Abhi Kambli and Erin Gaide

The Biden Administration is not done. Despite failing to legally mass forgive student debt three times, it announced a fourth attempt in late October. The questionable legal basis for this plan and the outcome of the presidential election make it unlikely this phase will see the light of day.

Best Civil Rights

Unpacking the Title IX Chaos: Are Single-Sex Spaces Allowed?, by May Mailman

This fall, as daughters wave farewell and head to school, parents and administrators may well wonder whether “daughters” exist at all as a definable category in our law, and whether these girls have or should have access to single-sex spaces. This uncertainty is driven by conflicting court decisions across the country, with some courts interpreting Title IX to require males who identify as girls to be included in girls’ spaces, and some forbidding that interpretation.

Best Financial Services

The Fed Has No Earnings to Send to the CFPB, by Alex Pollock

The Supreme Court has ruled that the CFPB funding scheme is constitutional. The opinion by Justice Thomas finds that nothing in the text of the Constitution prevents such a scheme, despite, as pointed out in Justice Alito’s dissent, the way it thwarts the framers’ separation of powers design. However, no one seems to have pointed out to the Court that the Federal Reserve System now has no earnings for the CFPB to share in. Instead, the Fed is running giant losses: it has lost the staggering sum of $169 billion since September 2022, and it continues to lose money at the rate of more than $1 billion a week. Under standard accounting, it would have to report negative capital and technical insolvency.

  • For a longer read about the COVID financial crisis, don’t miss Julius Loeser’s review of Alex’s coauthored book in the Federalist Society Review, Surprise, the Only Constant

Best Dobbs

The Comstock Act: Why Federal Mail-Order Abortion Rules Are the Next Abortion Battleground, Carolyn McDonnell

The mail-order abortion rules are poised to become a significant post-Roe battleground. These laws should be understood in the context of the United States’ legal history and tradition of abortion criminalization; indeed, they are a critical part of how our country limited abortion before Roe.

  • For a longer read about law and abortion, don’t miss Clarke Forsythe’s book review in the Federalist Society Review, What Will Settle Dobbs?

Best Administrative Law

Title IX Rule Explainer Series, by Paul Zimmerman

On April 29, 2024, the Department of Education published a 423-page final rule amending its implementing regulations for Title IX of the Education Amendments of 1972, which prohibits sex-based discrimination in federally funded education programs and activities in the United States, with certain exceptions. This blog series examines the final rule’s most significant changes—related to the Department’s reinterpretation [Part I] of the term “sex” in Title IX, requirements [Part II] to address “sex-based harassment,” and the obligations [Part III] of schools regarding Title IX enforcement and due process in disciplinary proceedings.

Best International Law

How Should Historical Gloss Inform Our Interpretation of the Constitution?: A Review of Historical Gloss and Foreign Affairs: Constitutional Authority in Practice, by Prof. Julian Ku

Bradley’s study reveals why originalists should welcome the use of historical gloss as a crucial interpretive ally in fending off nonoriginalist appeals to interpretive methods untethered to either text or history. Historical gloss is not originalism, and it should not replace originalist interpretation. But it is hard to imagine a functional originalist Constitution without it.

Best Free Speech  

California’s War on Satire and a Victory for the First Amendment, by Ryan Bangert

The court concluded by recognizing that while AI-generated deepfakes could be problematic, AB 2839 constitutes a “blunt tool that hinders humorous expression and unconstitutionally stifles free speech and unfettered exchange of ideas which is so vital to American democratic debate.” Counter speech, not censorship, is the best answer to satire and parody, particularly in the “political or electoral” context.

Best Federalism

Chevron in the States: Where Is Deference Still in Effect, and How Can States Eliminate It?, by GianCarlo Canaparo and Caleb Sampson

The next battles over administrative law will unfold in state capitols, state courts, and state ballot boxes. . . . Prudent state actors will have to discern the best way to eliminate judicial deference within unique situations and then get to work. To quote Justice Lee A. Johnson of the Kansas Supreme Court, state judicial deference ought to be “abandoned, abrogated, disallowed, disapproved, ousted, overruled, and permanently relegated to the history books where it will never again affect the outcome of an appeal.”

Best Environmental

Quibbling While the West Burns, by Jonathan Wood

The Forest Service faces an 80 million acre backlog in needed forest restoration. Whether it can tackle that enormous challenge will ultimately depend on whether the environmental review and permitting process can be made more efficient and litigation can be kept in check. In a world where bureaucracy moves slow and wildfires move fast, it’s little surprise that fire keeps winning. 

Best Antitrust

The Antitrust Untouchables: A Short Story, by John Tanski

I was neck-deep in a summary judgment brief late one afternoon when my phone began to vibrate. With a bit of reluctance, I turned from my brief, clicked off my billing timer, and swiped to answer.

I recognized the voice on the line as an old law school classmate. After exchanging greetings, she got right to the point: “I have an idea for a new antitrust conspiracy class action that I want to run by you. I think it could be huge. I know you defend those kinds of cases, so I’m hoping you’ll tell me if I’m off the mark before I start drafting my complaint.”

Best Labor and Employment

Noncompetes, Overtime, and the Status Quo: How Agency Rulemaking Distorts Federal Policy and Why Only Courts Can Fix It, by Alex MacDonald

Last week was a busy one for the Biden administration. It issued a raft of major employment rules, including a new rule on noncompete agreements and one on the FLSA’s “white collar” exemptions. The rules were controversial; they were fiercely debated and issued over the objections of many in Congress. Those objections, however, were basically irrelevant. Congress had no influence on the rules’ substance and no hope of swaying the underlying policies. If anything, its protests showed only how far federal policymaking has strayed from the classical, Congress-driven model. They also confirmed that the only possible fix is stronger judicial review.

Best Intellectual Property

The Bayh-Dole Act and the Debate Over “Reasonable Price” March-In Rights, by Andrei Iancu and Cooper Godfrey

If implemented, the proposal would destroy public-private partnerships between universities and the private sector, as the private sector will no longer be incentivized to commercialize the discoveries underlying federally funded patents, given the uncertainty over when the government might march in. This, in turn, would hurt innovation, job creation, funding for colleges and universities, and everyday Americans as new products and technologies are not brought to market. The result would be a return to “the technological malaise that befell America in the late 1970s” when other countries were “busy snuffing out Pittsburgh’s steel mills, driving Detroit off the road, and . . . assault[ing] . . . Silicon Valley.”

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].