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 […]

Unofficial leaking has been in the news recently, and is never far away from public consciousnesses.  But “[g]overnment officials and military officers, from the President on down, routinely authorize leaks for policy or political purposes.”  Jack Nelson, U.S. government Secrets and the Current Crackdown on Leaks 2 (2002), accessible at, https://shorensteincenter.org/wp-content/uploads/2012/03/2003_01_nelson.pdf?x78124. Suppose intelligence officials want […]

This is the second of two posts regarding Guido v. Mt. Lemmon School District,  Dkt. No. 17-587, currently on the Supreme Court docket for the October 2018 Term.  The case involves the applicability of Age Discrimination in Employment Act of 1967’s (ADEA) numerosity requirement, 29 U.S.C.A. § 630(b), to public employers. In my prior post […]

The U.S. Supreme Court granted certiorari in Guido v. Mt. Lemmon School District.  — U.S. — , 138 S.Ct. 1165 (February 26, 2018).  Presumably, it did so to resolve a Circuit split regarding the application of the Age Discrimination in Employment Act of 1967’s (ADEA) numerosity requirement, 29 U.S.C.A. § 630(b), to public employers.  In […]

On June 7, 2010, border patrol agent Jesus Mesa fatally shot Sergio Güereca, a 15–year–old Mexican national.  Güereca was standing near the cement culvert separating the United States and Mexico.  Hernández and several friends had run up the culvert’s embankment on the U.S. side, touched the border fence, and returned to Mexican territory.  Agent Mesa […]

On December 14, 2017, the Federal Communications Commission voted to repeal its Obama-Era net neutrality rules.  The day before the vote, FCC Chair Ajit Pai appeared in a humorous and unconventional “Harlem Shake” video produced by the Daily Caller, a conservative website.  In the video, entitled “7 Things You Can Still Do After Net Neutrality,” […]