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Articles by Robert Loeb
The Supreme Court Issues a Major Course Correction, Limiting The Role of Federal Courts in NEPA Cases | JD Supra
On May 29, 2025, the Supreme Court issued a decision in Seven County Infrastructure Coalition v. Eagle County, limiting the role of federal courts in National Environmental Policy Act (NEPA) cases.
CFPB Pause: Where From Here? | JD Supra
Visit our resource center, CFPB Pause: Where From Here?, to stay on top of the latest and what it may mean for the federal and state regulatory and enforcement landscape. On February 8, the Consumer Financial Protection Bureau halted virtually all supervisory, enforcement and litigation activity under its newly appointed Acting Director Russell Vought. A few days later, Jonathan McKernan was formally nominated as the next CFPB director.
Executive Order on Independent Regulatory Agencies | JD Supra
[co-authors: Elise Baranouski, Harmann Singh] On February 18, 2025, the Trump Administration issued a new Executive Order, entitled “Ensuring Accountability for All Agencies,” that seeks to increase presidential oversight and control of independent regulatory agencies. By instituting new consultation and approval requirements, and by expanding the White House’s power over agency objectives and budgets, the Order seeks to shift the relationship between the Presidency and independent agencies.
Navigating Executive Actions: How to Assess Their Impact and Legality | JD Supra
In the first two weeks of his second administration, President Donald J. Trump has signed dozens of executive orders[1] and “taken more than 300 executive actions”[2] on a broad array of topics.
*DON"T POST WAITING ON AUTHOR* Corporate Transparency Act On Hold Nationwide | JD Supra
A federal judge has blocked the U.S. government from enforcing the Corporate Transparency Act (CTA) and its implementing regulations nationwide. As a result, companies affected by the CTA do not have to report information about their beneficial owners to the Financial Crimes Enforcement Network (FinCEN) – for now, at least.
Supreme Court Substantially Alters Review Framework For Federal Administrative Agencies | JD Supra
The U.S. Supreme Court has issued its decision in Loper Bright Enterprises v. Raimondo, a case with significant implications for the way federal courts review administrative agency decisions. The ruling overturns a 1984 decision that led federal courts to defer to administrative agencies in interpreting ambiguous statues. The 1984 case – Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. – became one of the most important cases in administrative law, cited thousands of times.
D.C. Circuit Hears Oral Argument in Bahlul v. United States
On March 22, the U.S. Court of Appeals for the District of Columbia Circuit heard oral argument in Bahlul v. United States. The appeal raises again an interesting issue about whether the military commission convening authority is properly appointed under the U.S. Constitution. As background, Ali Hamza Ahmad Suliman al Bahlul is a Yemeni citizen. He swore an oath of loyalty to Osama bin Laden, received paramilitary training at an al-Qaeda camp, and eventually led al-Qaeda’s propaganda efforts.
D.C. Circuit Hears Oral Argument in Bahlul v. United States
On March 22, the U.S. Court of Appeals for the District of Columbia Circuit heard oral argument in Bahlul v. United States. The appeal raises again an interesting issue about whether the military commission convening authority is properly appointed under the U.S. Constitution. As background, Ali Hamza Ahmad Suliman al Bahlulis a Yemeni citizen. He swore an oath of loyalty to Osama bin Laden, received paramilitary training at an al-Qaeda camp, and eventually led al-Qaeda’s propaganda efforts.
Supreme Court Agrees to Review Constitutionality of CFPB’s Funding, But Not on an Expedited Basis | JD Supra
The Supreme Court granted the Consumer Financial Protection Bureau’s (CFPB) request to review the Fifth Circuit’s decision in Community Financial Services Association of America v. Consumer Financial Protection Bureau but so far has not expedited consideration of the case. Without quick action to expediate consideration by the Court, all CFPB actions will be open to challenge until the Supreme Court issues a decision. At the current pace, the CFPB could remain in this limbo until June of 2024.
Incremental advances will improve medical device alarm sounds
The March issue contains a laboratory study of auditory perception, which is an unusual topic for this journal. A perspective is provided on how the study relates to recent research on clinical auditory alarms and displays. Techniques used in the study are explored and explained, such as enrolment of non-clinician volunteer participants, use of coordinate response measure phrase stimuli, presentation of sound loudness levels using the decibel scale, and analysis using signal detection theory.
Supreme Court Overturns EPA’s Inconsequential Clean Power Plan | JD Supra
On June 30, 2022, the United States Supreme Court issued its long-awaited decision in West Virginia et al. v. Environmental Protection Agency et al., which invalidated the Clean Power Plan (“CPP”), an Obama-era regulation aimed at reducing fossil fuel use by mandating a nationwide conversion to less polluting electricity generation sources.
The Lawfare Podcast: The Supreme Court Rules on State Secrets
Jen Patja is the editor and producer of the Lawfare Podcast and Rational Security. She currently serves as the Co-Executive Director of Virginia Civics, a nonprofit organization that empowers the next generation of leaders in Virginia by promoting constitutional literacy, critical thinking, and civic engagement. She is the former Deputy Director of the Robert H. Smith Center for the Constitution at James Madison's Montpelier and has been a freelance editor for over 20 years.
Report on Supreme Court Argument in West Virginia v. EPA | JD Supra
On February 28, 2022, the Supreme Court heard oral argument in West Virginia v. EPA (consolidated with North American Coal Corp. v. EPA, Westmoreland Mining Holdings v. EPA, and North Dakota v. EPA), a case that has the potential to significantly curtail the EPA’s ability to address greenhouse gas emissions without additional legislative action.
OCC and FDIC Successfully Defend Valid-When-Made Rules | JD Supra
District court grants summary judgment in the agencies’ favor on cross-motions for summary judgment in the related cases of California v. Office of the Comptroller of the Currency, No. 4:20-cv-5200-JSW (N.D. Cal. Feb. 8, 2022) and California v. Federal Deposit Insurance Corp., No. 4:20-cv-5860-JSW (N.D. Cal.
The Lawfare Podcast: Liza Goitein and Bob Loeb on State Secrets
Jen Patja is the editor and producer of the Lawfare Podcast and Rational Security. She currently serves as the Co-Executive Director of Virginia Civics, a nonprofit organization that empowers the next generation of leaders in Virginia by promoting constitutional literacy, critical thinking, and civic engagement. She is the former Deputy Director of the Robert H. Smith Center for the Constitution at James Madison's Montpelier and has been a freelance editor for over 20 years.
When Is a State Secret Not a Secret?
The Supreme Court has not decided a state secrets privilege case in a decade. This term, however, the justices will decide two. On Oct. 6, the Supreme Court heard oral argument in the first one, United States v. Zubaydah, a case involving a request from Guantanamo detainee Zayn al-Abidin Muhammad Husayn (better known as Abu Zubaydah) for discovery of national security information to use in foreign proceedings.
When Is a State Secret Not a Secret?
Robert Loeb is a partner in Orrick, Herrington and Sutcliffe's Supreme Court and Appellate Litigation practice. The former Acting Deputy Director of the Civil Division Appellate Staff at the U.S. Department of Justice, he has handled hundreds of cases before the court of appeals and the Supreme Court. While at DOJ, he served as Special Appellate Counsel for National Security and International Law matters.
United States Supreme Court Clarifies Contours of Specific Personal Jurisdiction in Ford Motor Co. v. Montana Eighth Judicial District Court and Ford Motor Co. v. Bandemer | Orrick, Herrington & Sutcliffe LLP - JDSupra
In Ford Motor Co. v. Montana Eighth Judicial District Court and Ford Motor Co. v. Bandemer, issued Wednesday, the United States Supreme Court rejected Ford Motor Company’s challenge to two state courts’ assertion of specific personal jurisdiction over it on products liability claims. The two cases arose from car accidents, one occurring in Montana, the other in Minnesota. In each case, the plaintiff was a resident of the forum state.
States Seek to Invalidate The OCC True Lender Rule | JD Supra
Complaint filed in People of the State of New York, et al. v. Office of the Comptroller of the Currency, et al., No. 1:21-Civ-00057 (S.D.N.Y. Jan. 5, 2021) Recently, seven states (New York, California, Colorado, Massachusetts, New Jersey, Minnesota, and North Carolina) and the District of Columbia filed suit in the Southern District of New York against the Office of the Comptroller of the Currency (“OCC”) and Brian P. Brooks, the Acting Comptroller of the Currency.
The Madden Cloud is Lifting | JD Supra
In 2015, the Second Circuit’s decision in Madden v. Midland Funding, LLC, raised doubts about whether banks could transfer, sell, or assign their interests in consumer debt without triggering the enforcement of state usury laws. Recent OCC and FDIC regulations have sought to eliminate that uncertainty. In Peterson v. Chase Card Funding, a federal district court in New York has now rejected a class action based on Madden.
The Federal Courts Begin to Adapt to COVID-19
In the United States, COVID-19 quickly transformed from a looming risk to a paralyzing pandemic. The Center for Disease Control has emphasized the need to engage in “social distancing” and avoid group settings in order to combat the spread of the virus. And every day, the announced restrictions imposed or suggested become more stringent. Our courts are institutions long set in their ways. They are used to setting the rules and standards—and having others comply.
The Federal Courts Begin to Adapt to COVID-19
In the United States, the outbreak of the novel coronavirus quickly transformed from a looming risk to a paralyzing pandemic. The Centers for Disease Control and Prevention has emphasized the need to engage in “social distancing” and avoid group settings in order to combat the spread of the virus. And every day, the announced restrictions imposed or suggested become more stringent. Our courts are institutions long set in their ways.
Madden Progeny Update | JD Supra
Updated: May 25, 2018: JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.
The LIBOR Transition – What a Legacy!: Legislative Solutions/ Constitutional Law Considerations | JD Supra
As noted in our Financial Industry Alert published on January 17, 2020, one of the most daunting challenges for the forthcoming transition from LIBOR to an alternative reference rate has to be the impact of the prospective transition on outstanding financings and other contracts (legacy instruments).
Texas Supreme Court: Contracting Parties Can Negate The Formation Of A Partnership Through Contractual Conditions Precedent In Their Preliminary Agreements | Orrick, Herrington & Sutcliffe LLP - JDSupra
Updated: May 25, 2018: JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.
Due Process for Guantanamo Detainees: The D.C. Circuit Rules in Qassim
Last week, the U.S. Court of Appeals for the D.C. Circuit returned to the question of the constitutional rights possessed by the detainees remaining at the U.S. naval base at Guantanamo Bay, Cuba. In particular, Khalid Ahmed Qassim asserted a Fifth Amendment due process right to see the classified information that allegedly supports his detention.
Due Process for Guantanamo Detainees: The D.C. Circuit Rules in Qassim
Published by The Lawfare Institute in Cooperation With On June 21, the U.S. Court of Appeals for the D.C. Circuit returned to the question of the constitutional rights possessed by the detainees remaining at the U.S. naval base at Guantanamo Bay, Cuba. In particular, Khalid Ahmed Qassim asserted a Fifth Amendment due process right to see the classified information that allegedly supports his detention.
Kitchen Wisdom: How My Kids Stopped Whining and Started Making Lunch - PEP
Recently I wrote an article for Washington Parent about what a great place the kitchen is for parents—you can give your kids high-quality, positive attention and they get to experience the pride of accomplishment and contributing to the family, all while learning to build a salad or scramble an egg.
Brett Kavanaugh: A Judicial Lamb on National Security
In considering Judge Brett Kavanaugh’s Supreme Court nomination, there are many important unknowns, including how he would treat court precedents regarding such hot topics as same-sex marriage and abortion. In regard to national security and foreign affairs, however, there is little such ambiguity. Kavanaugh has a long, established track record on such matters—generally viewing them as issues for Congress and the executive, not the judiciary, to decide.
Brett Kavanaugh: A Judicial Lamb on National Security
In considering Judge Brett Kavanaugh’s Supreme Court nomination, there are many important unknowns, including how he would treat court precedents regarding such hot topics as same-sex marriage and abortion. In regard to national security and foreign affairs, however, there is little such ambiguity. Kavanaugh has a long, established track record on such matters—generally viewing them as issues for Congress and the executive, not the judiciary, to decide.
The SEC's Authority to Enforce the BSA Is Challenged | JD Supra
JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations. This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services").
Second Circuit Affirms Sabine: New Focus on Horizontal Privity Requirement May Affect Oil and Gas Gathering Agreement Terms | JD Supra
JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations. This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services").
The SEC’s Authority To Enforce The Bank Secrecy Act Is Challenged | JD Supra
JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations. This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services").
The CLOUD Act, Explained | JD Supra
The Clarifying Lawful Overseas Use of Data ("CLOUD") Act was enacted into law on March 23, 2018. The Act provides that U.S. law-enforcement orders issued under the Stored Communications Act (SCA) may reach certain data located in other countries – a key question in United States v. Microsoft Corporation, No. 17-2, a case argued before the Supreme Court on February 27.[1] Both the government and Microsoft recently agreed that the closely watched case is now moot following the CLOUD Act.
Al Shimari v. CACI: Further Supreme Court Guidance Needed on the Alien Tort Statute
The recent ruling by the Eastern District of Virginia in Al Shimari, et. al. v. CACI highlights the need for further guidance from the Supreme Court—or even better, Congress—regarding the scope and nature of the Alien Tort Statute (ATS). Plaintiffs Suhail Al Shimari, Salah Al–Ejaili, and Asa’ad Al–Zuba’e, all Iraqi nationals, were detained in the custody of the U.S. Army at Abu Ghraib prison in Iraq in 2003 and 2004.
How the Supreme Court's Upcoming Ruling in Same-Sex Marriage Wedding Cake Case Might Impact Other Small Businesses
One of the most contentious cases on the U.S. Supreme Court's fall docket involves a Colorado baker's much-publicized refusal to craft a wedding cake for a same-sex couple. This five-year-old case is described as a major battle between free speech and antidiscrimination laws. But, for all the noise, I don't expect the final ruling, even if the baker wins, to dramatically change the state of the antidiscrimination law.
Presumptions of Regularity Do Not Insulate the President’s Travel Ban Motives from Judicial Review
“Regular” is not the first word that comes to mind when I think about the current president. The process that led to the travel ban is a perfect example of why. The original executive order was rushed out in fulfillment of then-candidate Trump’s promised “Muslim ban” (“Statement on Preventing Muslim Immigration,” Dec. 7, 2015), without the regular vetting for such policies.
Presumptions of Regularity Do Not Insulate the President’s Travel Ban Motives from Judicial Review
“Regular” is not the first word that comes to mind when I think about the current president. The process that led to the travel ban is a perfect example of why. The original executive order was rushed out in fulfillment of then-candidate Trump’s promised “Muslim ban” (“Statement on Preventing Muslim Immigration,” Dec. 7, 2015), without the regular vetting for such policies.
Twitter Users Sue to Enjoin the President’s Twitter Blocking Based on Political Viewpoint
As previously detailed on Lawfare, the @realDonaldTrump Twitter account is no mere private account.
Trump Twitter Lawsuit: He's Violating the First Amendment
President Donald Trump has described himself on Twitter as “ MODERN DAY PRESIDENTIAL ” because of his use of social media.
How President Trump Is Violating the First Amendment
President Donald Trump has described himself on Twitter as “MODERN DAY PRESIDENTIAL” because of his use of social media.
Twitter Users Sue to Enjoin the President’s Twitter Blocking Based on Political Viewpoint
As previously detailed on Lawfare, the @realDonaldTrump Twitter account is no mere private account.
The DC Circuit Refuses to Adjudicate TVPA Claim Regarding the Lawfulness of Extrajudicial Killings
As Quinta Jurecic reported Friday, in Jaber v. United States, the U.S. Court of Appeals for the D.C. Circuit held that the political question doctrine bars the adjudication of claims regarding a 2012 U.S. drone strike in Yemen.
Blocking Twitter Users from the Presidential Account
President Trump’s alleged blocking of members of the public on Twitter on what appear to be viewpoint-based considerations, preventing them from reading his tweets and responding to them, raises serious constitutional issues.
Blocking Twitter Users from the Presidential Account
President Trump’s alleged blocking of members of the public on Twitter on what appear to be viewpoint-based considerations, preventing them from reading his tweets and responding to them, raises serious constitutional issues.
Association Of State Regulators Sues To Enjoin OCC's Fintech Special-Purpose National Bank Charters - Fin Tech - United States
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There was Never a National Security Need for the Travel Ban
Published by The Lawfare Institute in Cooperation With Today, there is much pondering about the strength or weakness of the courts’ latest rulings on Trump's revised immigration Executive Order and prognosticating about what may happen on appeal or when the issue finally reaches the Supreme Court.
There was Never a National Security Need for the Travel Ban
Today, there is much pondering about the strength or weakness of the courts’ latest rulings on Trump's revised immigration Executive Order and prognosticating about what may happen on appeal or when the issue finally reaches the Supreme Court. There are also complaints from those in Trump’s camp that the courts are unduly tying the Executive’s hands from protecting this country from visa and refugee applicants that pose a potential national security risk.
Trump’s DOJ to Assert State Secrets Privilege in Salim v. Mitchell
It looks like the DOJ is going to invoke the state secrets privilege after all in the latest CIA torture suit brought by former detainees, marking the first time that the Trump administration will use this powerful legal tool. But in an interesting variation on the typical post-9/11 state secrets cases, this time it is the defendants rather than the plaintiffs who seek to introduce information that the government alleges may harm national security.
Trump’s DOJ to Assert State Secrets Privilege in Salim v. Mitchell
It looks like the DOJ is going to invoke the state secrets privilege after all in the latest CIA torture suit brought by former detainees, marking the first time that the Trump administration will use this powerful legal tool. But in an interesting variation on the typical post-9/11 state secrets cases, this time it is the defendants rather than the plaintiffs who seek to introduce information that the government alleges may harm national security.
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