This is the second post in a three-part series regarding PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., Dkt No. 17-1705 (certiorari granted November 13, 2018). This post addresses the question the case nominally presents — does the Hobbs Act require district courts to apply FCC regulations, even when the court believes they conflict […]
“When Chevron meets Hobbs, consideration of the merits must yield to jurisdictional constraints.” Carlton & Harris Chiropractic, Inc. v. PDR Network, 883 F.3d 459 (4th Cir. 2018) The Supreme Court recently granted certiorari in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., Dkt No. 17-1705, (Order List Nov. 13, 2018). The Court framed […]
Yesterday, the Court decided Mount Lemon First District v. Guido, Dkt No. 17-587, 2018 WL 5794639 (Nov. 6, 2018), its first merits opinion of the October 2018 term. The question presented was whether the Age Discrimination in Employment Act of 1967 (ADEA) applied to political subdivisions regardless of whether they employed 20 or more employees. […]
Benjamin Franklin may have discovered electricity, but it was the men who invented the meter who made the money. Earl Wilson (American journalist 1907-1987) Like the milkmen of an earlier day, meter readers and their monthly meter readings, may become a thing of the past, as utility companies replace analogue energy meters with digital “smart” readers. […]
Drug prices have captured political leaders’ attention. See, e.g., Robert Pear, Big Pharma’s Nightmare: Trump Crossing the Aisle to Curb Drug Prices, N.Y.TIMES A23 (Oct. 21, 2018); Robert Langreth, Quicktake: Drug Prices, BLOOMBERG (Jan. 25, 2016)(updated May 11, 2018). On October 11, 2018, the Centers for Medicare and Medicaid Services (“CMS”) took a modest step […]
On October 11, 2018, the Centers for Medicare and Medicaid Services (“CMS”) proposed a requirement that direct-to-consumer (DTC) television advertisements for prescription drugs or biological products (“biologics”) include the product’s “list price.” Regulation to Require Drug Pricing Transparency, 52 Fed. Reg. 52789 (Oct. 18, 2018). The “Regulation to Require Drug Pricing Transparency,” 42 C.F.R. §§403.1200 to […]
This post concludes a four-part series prompted by the Supreme Court’s stay of the Eighth Circuit’s mandate in Food Marketing Institute v. Argus Leader Media, 889 F.3d 914 (2018). The first four posts (available here, here, here, and here) addressed the Food Marketing Institute’ frontal assault on the National Parks test for identifying “confidential” commercial […]
This post is the concluding portion of Part III on my series on Food Marketing Institute v. Argus Leader Media. In this post I argued that even if the Supreme Court remains unconvinced by a formal reenactment or acquiescence argument, like that outlined in Part III-A, the Court should hesitate before upending uniform court of […]
This post concludes my two-part preview of Thacker v. Tennessee Valley Authority, Dkt. 17-1201 (U.S. Sup. Ct.). The first post argued that the Federal Tort Claims Act (“FTCA”) and the Administrative Procedure Act (“APA”) should be interpreted in a complementary manner. It explained the discretionary function exception’s vital role in allocating controversies arising from government […]
On September 28, the Supreme Court granted certiorari in Thacker v. Tennessee Valley Authority (“Thacker v. TVA”). Order, Dkt. 17-1201, 2018 WL 4650382. (The docket sheet is available here.) The case raises the question of whether an implied discretionary function exception, akin to that in the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §2680(a), bars […]
This is my third post regarding the stay of the mandate in Food Marketing Institute v. Argus Leader Media. The Supreme Court appears ready to consider, and potentially upend, the well-developed Circuit law defining the scope of Freedom of Information Act (“FOIA”) Exemption 4 — the National Parks/Critical Mass doctrine. My first post described the […]
The Supreme Court appears poised to entertain an impending challenging to the well‑developed Circuit law defining the scope of Freedom of Information Act (“FOIA”) Exemption 4 — the National Parks/Critical Mass test. This post is the second in a series. The first described the development of the National Parks/Critical Mass doctrine and recounted the somewhat […]
On August 29, the Supreme Court ordered recall of the mandate in an Eighth Circuit case, Food Marketing Institute v. Argus Leader Media, 889 F.3d 914 (2018). It issued the Order, available here, in anticipation of a certiorari petition attacking the foundations of well-developed Circuit law defining the scope of Freedom of Information Act (“FOIA”) […]
“Like the Internet, the [Global Positioning System (“GPS”)] is an essential element of the global information infrastructure,” and “is now in everything from cell phones and wristwatches to bulldozers, shipping containers, and ATM’s.” GPS Applications, GPS.gov. But, as Justice Brandeis predicted in his famous Olmstead dissent, technological advances augur challenges to individual privacy. Olmstead v. […]
Between October and December 2003 U.S. military personnel engaged in “sadistic, blatant, and wanton criminal abuse” of Iraqi detainees at Abu Ghraib prison. See, Seymour M. Hersh, Torture at Abu Ghraid, THE NEW YORKER (May 10, 2004). Photographs and videos recorded the abuse; a few were published when the abuse was first reported. See, id. […]