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.  […]

This is the final post in my four-part series discussing Secretary of Commerce Wilbur Ross’ decision to add a citizenship question to the 2020 decennial census form.  The Secretary justified his decision by referencing the Department of Justice’s need for citizenship information in certain Voting Rights Act section 2 litigation.  Plaintiffs in the New York […]

This is my third post of four posts regarding Secretary of Commerce Wilbur Ross’ March 26, 2018 decision to add a citizenship question to the 2020 decennial census form.  The first post (here) discussed the disposition of the government’s motion to dismiss two suits challenging the decision.  The second post (here) took Secretary Ross’ reasons […]

If all lives matter, then all lives count. This is the second in a series of posts regarding Secretary of Commerce Wilbur Ross’ March 26, 2018 memorandum (here) directing the Census Bureau to add a citizenship question to the 2020 decennial census form distributed to all households.  Administrative Record filed in New York v. Department […]

The electorate should choose its representatives, not the other way around. On March 26, 2018, Secretary of Commerce Wilbur Ross directed the Census Bureau to include a question regarding citizenship on the 2020 census short form distributed to all households.  Memorandum from Wilbur Ross to Karen Dunn Kelley, Under Secretary for Economic Affairs, Department of […]

On March 6, 2018, the Justice Department sued California over its “sanctuary” laws.  U.S. v. California, Dkt No. 18-264, Complaint (E.D. Cal.); Thomas Fuller & Vivien Yee, Jeff Sessions Scolds California in Immigration Speech: “We Have a Problem,” N.Y. Times A22 (March 7, 2018).  The District Court has now ruled on the federal government’s preliminary […]

Delay has been an endemic problem for the Freedom of Information Act (“FOIA”) regime.  As a 2016 staff report of the House Committee on Government and Oversight Reform said: Agencies fail to articulate reasons for delays or explain how to navigate the process. Requesters wait months, not weeks, before receiving any response. Even a denial […]

Posts to this blog have justifiably focused on Lucia v. SEC, 138 S.Ct. 2044 (June 21, 2018), the recent Executive Order entitled “Excepting Administrative Law Judges from the Competitive Service,” and the resultant implications for the administrative judiciary’s independence.  But in the meantime, President Trump has issued three executive orders addressing job protections and related […]

Donald Trump is our first Twitter President.  He comments on public issues, outlines his plans, and excoriates various villains, all in 280 words or less.  In Knight First Amendment Institute v. Trump, 302 F.Supp.3d 541 (S.D.N.Y. 2018), appeal filed, Dkt. No. 18-1691 (2d Cir. June 5, 2018), Judge Naomi Reice Buchwald addressed a challenge by […]

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, 2018 WL 2465172 (June 4, 2018), the U.S. Supreme Court invalidated a Colorado Civil Right Commission decision requiring a bakery to sell a cake in connection with a same-sex couple’s wedding reception, despite the owner’s religious opposition to same-sex marriage.  It held that unconstitutionally anti-religious bias infected […]

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, 2018 WL 2465172 (June 4, 2018), the U.S. Supreme Court invalidated a Colorado Civil Right Commission decision requiring a bakery to sell a cake in connection with a same-sex couple’s wedding reception, despite the owner’s religious opposition to same-sex marriage.  It held that unconstitutionally anti-religious bias infected […]

  In Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court held that the Free Exercise Clause did not require governments to exempt religious adherents from generally applicable laws, even when those laws prohibited self-regarding actions performed as a part of a religious ceremony (namely ingesting peyote).  Id. at 877-79.  Resolving a claim […]

Sometimes the ship of state can be turned abruptly, but sometimes it can’t.  Even though agencies possess great budgetary flexibility, and reallocation of appropriated funds is generally an unreviewable exercise of discretion, see Lincoln v. Vigil, 508 U.S. 182 (1993), a new administration encounter constraints in discontinuing the funding of multiple-year grants made by a […]

In an earlier post I outlined a regulatory anomaly regarding liability for defective drug labels.  Hatch-Waxman expedited entry of generics medications into the market, by relieving generic-brand manufacturers of the need to conduct further testing.  Concomitantly, the statute placed control of the contents of the drug label in the hands of the original recipient of […]

Consider the following hypothetical.  A drug company develops and patents a pharmaceutical to sell under brand-name.  It secures FDA approval and enjoys its patent monopoly for many years.  But after that patent monopoly expires, generic brand-makers flood into the market and undercut the brand-name’s price.  Pharmacists substitute the generic for the brand name.  The label […]