Thursday, October 11, 2018
Bernard Bell has posted companion pieces to the Yale Journal on Regulation's "Notice & Comment." His introduction captures the theme:
On September 28, the Supreme Court granted certiorari in Thacker v. Tennessee Valley Authority (“Thacker v. TVA”). Order, Dkt. 17-1201, 2018 WL 4650382. (The docket sheet is available here.) The case raises the question of whether an implied discretionary function exception, akin to that in the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §2680(a), bars a negligence claim against the TVA. Many readers of this blog probably spend little mental energy on the FTCA, or the interaction between tort liability and Administrative Procedure Act (“APA”) judicial review. (And you probably expend even less contemplating the TVA or any other government corporation.) This series of two posts previews Thacker and discusses the complementary relationship between ex post tort liability and ex ante judicial review.