Notice & Comment

Author: Bernard Bell

Notice & Comment

Third Circuit Holds Claimants May Raise Lucia Challenges to SSA ALJs for First Time in District Court

Today the Third Circuit issued an opinion regarding application of exhaustion requirements to Lucia v. SEC, 138 S. Ct. 2044 (2018), challenges to Social Security Administration ALJs – Cirko v. Commissioner, 2020 WL 370832. Lucia decided that the SEC’s ALJs were officers of the United States, and thus that their appointments were unconstitutional because the […]

Notice & Comment

“The Fugitive:” ICE, Fugitives, and FOIA (Part II)

This two-part series discusses Smith v. U.S. Immigration & Customs Enforcement, involving ICE’s policy for responding to FOIA requests made by fugitive aliens.  My first post discussed the policy’s inconsistency with FOIA Exemption 7(A).  This post discusses whether the “fugitive disentitlement doctrine.” The Fugitive Disentitlement Doctrine In Ortega-Rodriguez v. U.S., 507 U.S. 234 (1993), the […]

Notice & Comment

“The Fugitive:” ICE, Fugitives, and FOIA (Part I)

This two-part series discusses Smith v. U.S. Immigration & Customs Enforcement, involving ICE’s policy for responding to FOIA requests made by fugitive aliens.  This post discusses the policy’s inconsistency with FOIA Exemption 7(A), which allows agencies to withhold law enforcement records that “could reasonably be expected to interfere with enforcement proceedings.”  The second post discusses […]

Notice & Comment

Fortieth Anniversary: The Commerce Department’s Foray Into Re-Writing Products Liability Law

On October 31, 1979, forty years ago this week, the Department of Commerce published its Model Uniform Products Liability Act (now commonly referenced as the “Uniform Product Liability Act”) in the Federal Register, 44 Fed. Reg. 62714 (1979).  “The Commerce Department?,” you might respond with bemusement.  Ordinarily uniform and model state laws are crafted by […]

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The October 9 Executive Orders and Government Acquisition of Information

As Aaron Nielson has noted, two new Executive Orders were issued yesterday.  He has described some of the major provisions.  But, in addition, there are provisions in the “Executive Order on Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication” regarding government inspections and information collection. With respect to […]

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Engineering Rules: Chronicling the Development of A Third Way

Markets vs. Regulation Many of us think about regulation in somewhat dichotomous terms, namely as a choice between free markets and government regulation.  Under the standard view, the market optimally provides many goods and services.  In the competition of various firms pricing their goods and services, the “hidden” hand” of the market will lead to […]

Notice & Comment

Delegation of Eminent Domain Powers to Private Entities: In Re PennEast Pipeline Co.

Summary:  Does the federal government’s delegation of its power to take property by eminent domain to private entities allow such entities to bring a federal or state action to acquire state-owned property (despite states’ “Eleventh Amendment” immunity? The Natural Gas Act (“NGA”), 15 U.S.C. §§ 717–717z, allows private gas companies to exercise the federal government’s […]

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FOIA Exemption 3’s Clear Statement Rule and the Canon of Repeal by Comprehensive Revision: Everytown for Gun Safety v. ATF

FOIA Exemption 3 allows agencies to withhold documents in response to FOIA requests regarding “matters that are … specifically exempted from disclosure by statute.” 5 U.S.C. § 552(b)(3)(A).  To be “specifically exempted” by statute, the statute must (i) prohibit disclosure “in such a manner as to leave no discretion on the issue,” or “(ii) establishe[] […]

Notice & Comment

On the Docket: Kansas v. Garcia

Introduction On October 16, the U.S. Supreme Court the Court will hear argument in Kansas v. Garcia, Dkt. No. 17-834. [1]  The Kansas Supreme Court opinion is reported at 306 Kan. 1113, 401 P.3d 588 (2017).  The case involves the preemptive effect of a portion of the Immigration Reform and Control Act of 1986, Pub. […]

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Adjudicating Internecine Quarrels

Summary: This post discusses the question of whether a state instrumentality or subdivision can sue the state of which it is a part, and if so, under what circumstances.  The answer is a complicated one involving four distinct sets of sub-questions. The idea for this blogpost came from Tweed-New Haven Airport Authority v. Tong, — […]

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Food Marketing Institute: A Preliminary Assessment (Part II)

Summary:  In this two-part series I discuss the Supreme Court’s June 24, 2019 decision in Food Marketing Institute v. Argus Leader Media, which upended over fifty years of doctrine defining FOIA Exemption 4’s scope, and the decision’s implications. In Food Marketing Institute v. Argus Leader Media, 2019 WL 2570624 (June 24, 2019), the Supreme Court […]

Notice & Comment

Food Marketing Institute: A Preliminary Assessment (Part I)

Summary:  In this two-part series I discuss the Supreme Court’s June 24, 2019 decision in Food Marketing Institute v. Argus Leader Media, which upended over fifty years of doctrine defining the scope of FOIA Exemption 4, and explore five implications of the Court’s decision. “[I]t is one of the surest indexes of a mature and […]