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.  […]

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 […]