Author Archives: Bernard Bell

“You’re Fired”: Executive Order 13839 and Civil Service Protections

by Bernard Bell — Friday, July 13, 2018

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 […]

A Little Blue Birdie Told Me: Knight First Amendment Institute v. Trump (SDNY)

by Bernard Bell — Wednesday, July 11, 2018

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 […]

A Lemon Cake: Ascribing Religious Motivation in Administrative Adjudications — A Comment on Masterpiece Cakeshop (Part III)

by Bernard Bell — Thursday, June 21, 2018

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 […]

A Lemon Cake: Ascribing Religious Motivation in Administrative Adjudications — A Comment on Masterpiece Cakeshop (Part II)

by Bernard Bell — Wednesday, June 20, 2018

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 […]

A Lemon Cake: Ascribing Religious Motivation in Administrative Adjudications — A Comment on Masterpiece Cakeshop (Part I)

by Bernard Bell — Friday, June 15, 2018

  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 […]

TPP. .P

by Bernard Bell — Tuesday, June 5, 2018

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 […]

Hatch-Waxman and Defective Generic Drug Labels: The Disjunction Between Federal Drug Safety Law and State Warning Defect Law (Part II)

by Bernard Bell — Monday, June 4, 2018

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 […]

Hatch-Waxman and Defective Generic Drug Labels: The Disjunction Between Federal Drug Safety Law and State Warning Defect Law (Part I)

by Bernard Bell — Tuesday, May 29, 2018

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 […]

Plausible Deniability: Selective Disclosure of Information and FOIA

by Bernard Bell — Thursday, May 17, 2018

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 […]

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On the Supreme Court Docket — Guido v. Mt. Lemmon School District: Numerosity Requirements in the ADEA and Other Employment Discrimination Statutes (Part II)

by Bernard Bell — Tuesday, May 15, 2018

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 […]