Legal Briefs

• Ricci v. DeStefano, February 25, 2009 (PDF, 18pp, 80 Kb).
  In Ricci v. DeStefano, the City of New Haven, Connecticut developed an exam for firefighters seeking promotion to command positions. The City went out of its way to ensure that the exam was race-neutral and tested only relevant skills and abilities. When the exam results came down, however, white candidates had done better than their African-American and Hispanic peers. Given the few command positions available and the City's rule that the highest scorers on an exam be promoted first, few minority firefighters would thus have been eligible for promotion. After a series of meetings and political machinations, the City refused to certify the results of the exam and promote anyone. Several of the firefighters who would have been eligible for promotion filed a lawsuit, claiming racial discrimination under Title VII. The district court, affirmed by the court of appeals, granted summary judgment for the defendants, holding that the City's alleged fear of an adverse impact claim (a different type of racial discrimination claim under Title VII)-based merely on the fact that the exam results yielded a racial disparity-was a legitimate reason for its decision not to certify the exams. Cato's brief, joined by Reason Foundation and the Individual Rights Foundation, points out the absurd incentives at play: if the lower court's ruling stands, employers will throw out the results of exams (or other criteria) that produce racial disparity, even if those exams are race-neutral, entirely valid, and extremely important to the employer and (as in this case) the public.



• Citizens United v. Federal Election Commission, January 14, 2009 (PDF, 35pp, 211 Kb).
  Testing the bounds of the Supreme Court's landmark decision in Wisconsin Right to Life II (WRTL II), the Federal Election Commission recently sought to apply certain prohibitions and disclosure requirements of the Bipartisan Campaign Reform Act of 2002 to advocacy group Citizens United's political documentary, Hillary: The Movie, and to the group's broadcast advertisements for the film. Though the FEC conceded that the ads, at least, are not the functional equivalent of express campaign advocacy, as defined in WRTL II, it nevertheless determined that Citizens United must disclose the identities of its contributors. Cato's brief argues that BCRA violates the First Amendment freedom of association belonging to those contributors, which freedom includes the right to associate anonymously and to control the group's character and message free from government intervention. For groups engaging in political speech, compelled disclosure of contributors' identities infringes their freedom of private expressive association, a burden often no less severe than direct restraint of the group's speech. This type of government action must be subject to strict constitutional scrutiny—a level of scrutiny that in practice is almost always fatal. The district court failed to afford sufficient value to associational rights and so failed to scrutinize appropriately the BCRA disclosure provisions' unjustified infringement on those rights.



• Hawaii v. Office of Hawaiian Affairs, December 11, 2008 (PDF, 46 pp, 232 Kb).
  In the 2000 case of Rice v. Cayetano, the Supreme Court held that a race-based scheme allowing only statutorily defined "Hawaiians" to vote for the Office of Hawaiian Affairs's trustees was unconstitutional. Despite Rice, and despite Justice John Marshall Harlan's dissenting statement in Plessy v. Ferguson 112 years ago that "[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens," the OHA continues to view Hawaiian citizens through racial lenses. This practice has spawned numerous lawsuits, including the present legal crisis in which the state's sovereign authority to manage its land for the good of all of its citizens has been replaced with a court-imposed duty to hold the land for the benefit of one racial class. Specifically, the Hawaii Supreme Court blocked the sale of certain state lands based on a mistaken (and race-based) interpretation of a joint resolution that Congress passed in 1993 to apologize to Hawaiian people for the overthrow of the Kingdom of Hawaii—which was itself based on a slanted view of history. Cato's brief, joining with the Pacific Legal Foundation and the Center for Equal Opportunity, argues that race-based government is impermissible under the Fourteenth Amendment's Equal Protection Clause, that the Constitution's Indian Commerce Clause does not provide a basis for laws that grant preferences to "Native Hawaiians," and that the Apology Resolution neither amended nor rescinded the federal laws that gave the state of Hawaii full control over the disputed land.



• Philip Morris USA v. Mayola Williams, July 28, 2006 (PDF, 21 pp, 364 Kb).
  In this brief, co-authored by noted economists Steven Shavell and A. Mitchell Polinksy, Cato weighs in on the due process limits that the Fourteenth Amendment imposes on excessive, bet-the-company punitive damages. While trial lawyers often argue that the logic of deterrence requires large companies to pay more punitive damages than smaller companies, Cato’s brief demonstrates that the size and wealth of a company shouldn’t factor into the size of a punitive damages judgment. Because companies make judgments based on profits, large companies and small companies generally have every incentive to take precautions necessary to avoid harm to others when damages are equal to the harm they cause. Adjusting the damages upward because a company is large or wealthy does little to deter, spawning excessive litigation and creating a tax on corporate success.



• Donald H. Rumsfeld v. Forum for Academic and Institutional Rights, September 2005 (PDF, 28 pp, 208 Kb).
  Addressing whether the Solomon Amendment, which denies federal funding to universities that refuse military recruiters equal access to students, violates the First Amendment and the unconstitutional conditions doctrine.



• Booker T. Hudson, Jr. v. State of Michigan, August 2005 (PDF, 36 pp, 131 Kb).
  Addressing whether evidence seized by police officers who violated the Fourth Amendment's "knock-and-announce rule" must be suppressed at trial.



• Alberto Gonzales, Attorney General, et al. v. State of Oregon, et al., July 2005 (PDF, 37 pp, 102 Kb).
  Addressing limits imposed by the Commerce Clause on federal power to undermine or preempt the Death with Dignity Act, Oregon's physician-assisted suicide law.



• Linda Lingle, Governor of the State of Hawaii, et al. v. Chevron USA, Inc., January 2005 (PDF, 39 pp, 1602 Kb).
  Addressing, in a commercial rent control context, whether the Fifth Amendment's Just Compensation Clause authorizes a court to invalidate state economic legislation when the legislation does not substantially advance a legitimate state interest.



• Kim Powers, et al. v. Joe Harris, et al., December 2004 (PDF, 25 pp, 154 Kb).
  Addressing whether intrastate economic protectionism constitutes a legitimate state interest.



• Susette Kelo, et al. v. City of New London, Connecticut, et al., Brief of Amicus Curiae, December 3, 2004 (PDF, 40 pp, 241 Kb).
  Addressing the Fifth Amendment's limits on the power of government to take private property for "public use."



• John Ashcroft v. Angel McClary Raich, et al., Brief of Amicus Curiae, October 13, 2004 (PDF, 40 pp, 974 Kb).
  Addressing the limits imposed by the Commerce Clause on the federal government’s power to regulate intrastate, medicinal use of marijuana.



• Donald H. Rumsfeld v. Jose Padilla and Donna R. Newman, as Next Friend of Jose Padilla, Brief of Amicus Curiae, June 2004 (PDF, 22pp, 113Kb).
  Addressing the scope of the president's power to designate citizens as "enemy combatants" and hold them in solitary confinement, without access to an attorney, and without access to the civilian court system.



• Yaser Esam Hamdi and Esam Fouad Hamdi, as next friend of Yaser Esam Hamdi, v. Donald Rumsfeld, et al., Brief of Amicus Curiae, June 2004 (PDF, 19pp, 93Kb).
  Addressing the scope of the president's power to designate citizens as "enemy combatants," and hold them in solitary confinement, without access to an attorney, and without access to the civilian court system.



• Larry D. Hiibel v. Sixth Judicial District Court Of Nevada, Humboldt County, et al., Brief of Amicus Curiae, June 2004 (PDF, 31pp, 127Kb).
  Addressing the power of the police to demand identification from individuals who wish to remain silent



• Basim O. Sabri v. United States, Brief of Amicus Curiae, May 2004 (PDF, 36pp, 162Kb).
  Addressing the scope of the Necessary and Proper Clause.



• Rancho Viejo, LLC v. Gale A. Norton, April 2004 (PDF, 20pp, 163Kb).
  Addressing whether the Endangered Species Act's regulation of noneconomic activity is authorized under the Commerce Clause.



• Shelly Parker, Dick Anthony Heller, Tom G. Palmer, Gillian St. Lawrence, Tracey Ambeau and George Lyon v. District of Columbia and Anthony Williams, March 2004 (PDF, 9pp, 48Kb).
  Addressing firearms restrictions in the District of Columbia.



• Gary Locke, Marcus S. Gaspard, Bob Craves, and John Klacik v. Joshua Davey, February 2004 (PDF, 36pp, 209Kb).
  Addressing Washington State's Blaine Amendment, which denies scholarship funding to students pursuing a theology major.



• Mitch McConnell, et al., Appellants v. Federal Election Commission, et al., Appellees, December 2003 (PDF, 35pp, 252Kb).
  Addressing the Bipartisan Campaign Reform Act of 2002, before the U.S. Supreme Court.



• Eric Eldred v. John D. Ashcroft, Brief of Amicus Curiae, June 2003 (PDF, 23pp, 64Kb).
  Addressing the extension of intellectual property patents by Congress.



• John Geddes Lawrence and Tyron Garner v. The State of Texas, Brief of Amicus Curiae, June 2003 (PDF, 50pp, 443Kb).
  Addressing sodomy laws in the state of Texas.



• Barbara Grutter v. Lee Bollinger, Jeffrey Lehman, Dennis Shields, and the Board of Regents of the University of Michigan, et al., Brief of Amicus Curiae, June 2003 (PDF, 36pp, 3293Kb).
  Addressing race-based preferences in the University of Michigan's admissions process.



• Senator Mitch McConnell v. Federal Election Commission, Brief of Amicus Curiae, May 2003 (PDF, 33pp, 245Kb).
  Addressing the Bipartisan Campaign Reform Act of 2002, before the U.S. District Court.



• Board Of Education Of Ind. School Dist., No. 92 of Pottawatomie County, et al. v. Lindsay Earls, et al., Brief of Amicus Curiae, June 2002 (PDF, 34pp, 73Kb).
  Addressing suspicionless drug testing of non-athlete students.



• William Joseph Harris v. The United States of America, Brief of Amicus Curiae, June 2002 (PDF, 36pp, 80Kb).
  Addressing the increased mandatory minimum sentence for the "brandishing" of a firearm.



• Zelman v. Simmons-Harris, Brief of Amicus Curiae, June 2002 (PDF, 24pp, 174Kb).
  Addressing the school voucher program in Cleveland, Ohio.



• A.D. Bedell Wholesale Co., Inc., and Triangle Candy & Tobacco Co. v. Philip Morris, Inc., R.J. Reynolds Tobacco Co., Inc., and Brown & Williamson Tobacco Corp., July 2001 (PDF, 27 pp, 87 Kb).
  Addressing the constitutionality of the multi-state tobacco settlement.



• Gail Atwater v. The City of Lago Vista, Brief of Amicus Curiae, April 2001 (PDF, 13 pp, 480 Kb).
  Addressing the warrantless arrests for minor offenses (in the case at hand, failing to use a seat belt).



• Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, Brief of Amicus Curiae, January 2001 (PDF, 18 pp, 159 Kb).
  Addressing the limits of the federal interstate commerce power.



• Steve A. Harrison v. The United States of America, Brief of Amicus Curiae, October 2000 (PDF, 11 pp, 66 Kb).
  Addressing the "petty offense" exception to the right to a trial by jury.



• Carol M. Browner, Administrator Of The Environmental Protection Agency v. American Trucking Association, Brief of Amicus Curiae, October 2000 (PDF, 37 pp, 307 Kb).
  Addressing the Clean Air Act's regulation on non-threshold pollutants.



• Boy Scouts of America and Monmouth Council, Boy Scouts of America v. James Dale, June 2000 (PDF, 35 pp, 223 Kb).
  Addressing the Boy Scouts and the freedom of association for private organizations.



• Antonio J. Morrison v. United States of America, Brief of Amicus Curiae, May 2000 (PDF, 36 pp, 899 Kb).
  Addressing the Violence Against Women Act and the federal commerce power.



• Dewey J. Jones v. United States of America, Brief of Amicus Curiae, May 2000 (PDF, 23 pp, 93 Kb).
  Addressing a federal arson law and the federal commerce power.



• Rita Gluzman v. United States of America, Brief of Amicus Curiae, March 1999 (PDF, 16 pp, 45 Kb).
  Addressing whether or not the federal commerce clause extends to domestic abuse.