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Author Archives: johnpolk

Supreme Court Opines on the Deliberative Process Privilege

by John W. Polk | March 28, 2021 | Government Contracts

There are situations in which a government contractor might want access to documents held by the government. The Freedom of Information Act (FOIA) provides a means to acquire such documents. FOIA requires federal agencies to make records available to the public upon request unless those records fall within one of…

Separation of powers; Congressional subpoena for the President’s personal papers

by John W. Polk | July 17, 2020 | Business Litigation

TRUMP v. MAZARS USA, LLP, ___ U.S. ___, No. 19-715 (9 July 2020) During April 2019, three committees of the U.S. House of Representatives issued subpoenas for information about the finances of President Trump, his children, and affiliated businesses.  The House claimed that generally the financial information would help…

Criminal Law; Immigration Law; Party Presentation Principle 

by John W. Polk | May 20, 2020 | Immigration Law

UNITED STATES v. SINENENG-SMITH, ___ U.S. ___, No. 1967 (7 May 2020) This case concerns a provision of the immigration laws, 8 U. S. C. §1324, which makes it a felony to encourage or induce an alien to enter or reside in the United States, knowing or in reckless disregard…

Is the President Absolutely Immune From A State Grand Jury Subpoena?

by John W. Polk | May 8, 2020 | Entertainment, Sports, & Media Law

THE CASE OF DONALD TRUMP v. CYRUS VANCE, Jr. and MAZARS USA  Winston Churchill wrote a biography of his ancestor John Churchill, who is better known as the Duke of Marlborough. Describing the period of conflict spanning the demise of Cromwell’s government and the restoration of Charles II to…

Criminal law; immigration; preemption doctrine

by John W. Polk | March 16, 2020 | Employment & Labor Law

KANSAS v. GARCIA, ___ U.S. ___, No. 17-834 (3 March 2020) Until 1986, federal law did not prohibit employing illegal aliens.  In 1986, Congress enacted the Immigration Reform and Control Act (IRCA) that makes it illegal to knowingly hire an illegal alien to work in the United States. …

Bivens action; whether to extend the Bivens doctrine; separation of powers

by John W. Polk | March 4, 2020 | Business Litigation

Hernandez v. Mesa, ___ U.S. ___, No. 17-1678 (25 February 2020) In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), the Supreme Court held that a person claiming to be the victim of an unlawful arrest and search could bring a 4th Amendment claim for damages against…

Fair Debt Collection Practices Act; statute of limitations; discovery rule

by John W. Polk | January 6, 2020 | Business Litigation

ROTKISKE v. KLEMM, ___ U.S. ___, No. 18-328 The Fair Debt Collection Practices Act (FDCPA) authorizes private civil actions against debt collectors who engage in certain prohibited practices.  The statute provides that a private action must “be filed within one year from the date on which the violation occurs.”…

Firearms; mass shooting; negligent background check; Federal Tort Claims Act; discretionary function

by John W. Polk | September 9, 2019 | Business Litigation

SANDERS, et al., v. UNITED STATES OF AMERICA, ___ F.3d ___, U.S. Court of Appeals for the Fourth Circuit, No. 18-1931 (30 August 2019). Federal law prohibits several categories of persons from buying or possessing a firearm, including anyone who is an unlawful user…

Private Property and Takings Clause of the Fifth Amendment

by John W. Polk | August 5, 2019 | Business Litigation

KNICK v. TOWNSHIP OF SCOTT, PENNSYLVANIA, ___ U.S. ___, No. 17-647 (21 June 2019) The Takings Clause of the Fifth Amendment states that “private property [shall not] be taken for public use, without just compensation.”  The Supreme Court has long held that property owners may bring Fifth Amendment claims against…

Does Apple Monopolize the Retail Market for Apps: APPLE v. PEPPER, ___ U.S. ___, No. 17-204 (13 May 2019)

by John W. Polk | July 9, 2019 | Business Litigation

Antitrust; direct purchaser rule Facts In 2007, Apple introduced the iPhone.  The next year, Apple created an electronic App Store where consumers could buy apps for their iPhones.  The apps sold to consumers are developed by third-party app developers, not by Apple.  Through contract and technical constraints, Apple prohibits the…