Monthly Archives: August 2019

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

by Bernard Bell — Thursday, Aug. 22, 2019

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[] […]

Iowa Law Review Symposium Issue: Administering Patent Law

by Christopher J. Walker — Thursday, Aug. 22, 2019@chris_j_walker

The Iowa Law Review just published a terrific symposium at the intersection of administrative law and patent law, to which I contributed an essay entitled Constitutional Tensions in Agency Adjudication. Here’s a snippet from the symposium’s introduction, penned by the faculty symposium organizer Jason Rantanen (footnotes omitted): The United States Patent and Trademark Office (“USPTO”) […]

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Lucia v. SEC—One Year Later, by Kent Barnett & Earl Cooke

by Guest Blogger — Wednesday, Aug. 21, 2019

The Supreme Court issued its opinion in Lucia v. SEC on June 21, 2018. The Lucia Court held that “the [Securities and Exchange Commission’s] ALJs are Officers of the United States, subject to the Appointments Clause” and not “simply employees of the Federal Government.” The SEC’s ALJs are “Officers of the United States” because they […]

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Call for Papers: ACS Junior Scholars Public Law Workshop @ AALS 2020

by Christopher J. Walker — Tuesday, Aug. 20, 2019@chris_j_walker

From the American Constitution Society: To further its mission of promoting the vitality of the U.S. Constitution and the fundamental values it expresses — individual rights and liberties, genuine equality, access to justice, democracy and the rule of law — ACS is pleased to announce a call for papers for a workshop on public law to […]

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Why the Senate Likely Cannot Be Called Back Into Session Under the Constitution

by Sam Wice — Saturday, Aug. 17, 2019@Wice_sam

In response to mass shootings across the country, several politicians, including President Trump, have called for increased gun-control measures. House Democrats had already passed some gun control bills before the mass shootings, and Speaker Pelosi has urged the Senate to consider the legislation. To encourage immediate action, Speaker Pelosi recently wrote a letter to President […]

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D.C. Circuit Review – Reviewed: Sausage Making

by Aaron Nielson — Friday, Aug. 16, 2019@Aaron_L_Nielson

Then-Judge Scalia penned one of the D.C. Circuit’s great sentences: “This case, involving legal requirements for the content and labeling of meat products such as frankfurters, affords a rare opportunity to explore simultaneously both parts of Bismarck’s aphorism that ‘No man should see how laws or sausages are made.’” That sentence came to mind today […]

Reclaiming Notice and Comment: Part II, by Nancy Chi Cantalupo, Matthew Cortland, and Karen Tani

by Guest Blogger — Tuesday, Aug. 13, 2019

In an earlier post in this series, two of us (Cortland and Tani) described how the notice-and-comment process has entered the arsenal of a range of groups and organizers, many seeking to challenge the policies of the current administration. We made the case by highlighting grassroots efforts to explain to the public what notice-and-comment is and how to participate […]

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Reclaiming Notice and Comment, by Matthew Cortland and Karen Tani

by Guest Blogger — Monday, Aug. 12, 2019

In June 2016, five months before the election of President Donald Trump, Senator Elizabeth Warren wrote a post for the Regulatory Review on “corporate capture of the regulatory process.” It highlighted myriad opportunities in the rulemaking process “for powerful industry groups to tilt the scales in their favor.” The “notice and comment” process offered a key example: […]

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