Author Archives: Bernard Bell

Fortieth Anniversary: The Commerce Department’s Foray Into Re-Writing Products Liability Law

by Bernard Bell — Tuesday, Oct. 29, 2019

On October 31, 1979, forty years ago this week, the Department of Commerce published its Model Uniform Products Liability Act (now commonly referenced as the “Uniform Product Liability Act”) in the Federal Register, 44 Fed. Reg. 62714 (1979).  “The Commerce Department?,” you might respond with bemusement.  Ordinarily uniform and model state laws are crafted by […]

The October 9 Executive Orders and Government Acquisition of Information

by Bernard Bell — Thursday, Oct. 10, 2019

As Aaron Nielson has noted, two new Executive Orders were issued yesterday.  He has described some of the major provisions.  But, in addition, there are provisions in the “Executive Order on Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication” regarding government inspections and information collection. With respect to […]

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Food Marketing Institute: Office of Information Policy Guidance Released

by Bernard Bell — Wednesday, Oct. 9, 2019

As noted in prior posts (here and here), the Supreme Court radically altered the long-accepted scope of Freedom of Information Act (“FOIA”) Exemption 4 in Food Marketing Institute v. Argus Leader Media, 139 S.Ct. 2356 (June 24, 2019). On October 3, the Department of Justice’s Office of Information Policy (“OIP”) released guidance to agencies regarding […]

Engineering Rules: Chronicling the Development of A Third Way

by Bernard Bell — Wednesday, Oct. 2, 2019

Markets vs. Regulation Many of us think about regulation in somewhat dichotomous terms, namely as a choice between free markets and government regulation.  Under the standard view, the market optimally provides many goods and services.  In the competition of various firms pricing their goods and services, the “hidden” hand” of the market will lead to […]

Delegation of Eminent Domain Powers to Private Entities: In Re PennEast Pipeline Co.

by Bernard Bell — Monday, Sept. 16, 2019

Summary:  Does the federal government’s delegation of its power to take property by eminent domain to private entities allow such entities to bring a federal or state action to acquire state-owned property (despite states’ “Eleventh Amendment” immunity? The Natural Gas Act (“NGA”), 15 U.S.C. §§ 717–717z, allows private gas companies to exercise the federal government’s […]

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[] […]

Adjudicating Internecine Quarrels

by Bernard Bell — Monday, July 29, 2019

Summary: This post discusses the question of whether a state instrumentality or subdivision can sue the state of which it is a part, and if so, under what circumstances.  The answer is a complicated one involving four distinct sets of sub-questions. The idea for this blogpost came from Tweed-New Haven Airport Authority v. Tong, — […]

Food Marketing Institute: A Preliminary Assessment (Part II)

by Bernard Bell — Monday, July 8, 2019

Summary:  In this two-part series I discuss the Supreme Court’s June 24, 2019 decision in Food Marketing Institute v. Argus Leader Media, which upended over fifty years of doctrine defining FOIA Exemption 4’s scope, and the decision’s implications. In Food Marketing Institute v. Argus Leader Media, 2019 WL 2570624 (June 24, 2019), the Supreme Court […]

Presidential Transition Teams, GSA, and the FBI: The Three Shell Game, FOIA Style

by Bernard Bell — Saturday, July 6, 2019

The three-shell game, in which a “mark” guesses which of three shells hides a pea, has long been used as a street hustle.  There’s a Freedom of Information Act (“FOIA”) version of the game.  When a presidential transition team engages in communications over systems provided by the General Services Administration (“GSA”), which preserves those records […]