Author Archives: Bernard Bell

Guido v. Mt. Lemmon School District: The Supreme Court Decides

by Bernard Bell — Wednesday, Nov. 7, 2018

Yesterday, the Court decided Mount Lemon First District v. Guido, Dkt No. 17-587, 2018 WL 5794639 (Nov. 6, 2018), its first merits opinion of the October 2018 term.  The question presented was whether the Age Discrimination in Employment Act of 1967 (ADEA) applied to political subdivisions regardless of whether they employed 20 or more employees.  […]

Too Smart by Half?: Naperville Smart Meter Awareness v. City of Naperville

by Bernard Bell — Tuesday, Nov. 6, 2018

Benjamin Franklin may have discovered electricity, but it was the men who invented the meter who made the money.  Earl Wilson (American journalist 1907-1987) Like the milkmen of an earlier day, meter readers and their monthly meter readings, may become a thing of the past, as utility companies replace analogue energy meters with digital “smart” readers.  […]

Mandating Drug Price Transparency (Part II)

by Bernard Bell — Tuesday, Oct. 30, 2018

Drug prices have captured political leaders’ attention.  See, e.g., Robert Pear, Big Pharma’s Nightmare: Trump Crossing the Aisle to Curb Drug Prices, N.Y.TIMES A23 (Oct. 21, 2018); Robert Langreth, Quicktake: Drug Prices, BLOOMBERG (Jan. 25, 2016)(updated May 11, 2018).  On October 11, 2018, the Centers for Medicare and Medicaid Services (“CMS”) took a modest step […]

Mandating Drug Price Transparency (Part I)

by Bernard Bell — Sunday, Oct. 28, 2018

On October 11, 2018, the Centers for Medicare and Medicaid Services (“CMS”) proposed a requirement that direct-to-consumer (DTC) television advertisements for prescription drugs or biological products (“biologics”) include the product’s “list price.” Regulation to Require Drug Pricing Transparency, 52 Fed. Reg. 52789 (Oct. 18, 2018).  The “Regulation to Require Drug Pricing Transparency,” 42 C.F.R. §§403.1200 to […]

Oh SNAP!: A Battle Over “Food Stamp” Redemption Data That May Radically Reshape FOIA Exemption 4 (Part IV)

by Bernard Bell — Monday, Oct. 22, 2018

This post concludes a four-part series prompted by the Supreme Court’s stay of the Eighth Circuit’s mandate in Food Marketing Institute v. Argus Leader Media, 889 F.3d 914 (2018).  The first four posts (available here, here, here, and here) addressed the Food Marketing Institute’ frontal assault on the National Parks test for identifying “confidential” commercial […]

Oh SNAP!: The Battle Over “Food Stamp” Redemption Data That May Radically Reshape FOIA Exemption 4 (Part III-B)

by Bernard Bell — Wednesday, Oct. 10, 2018

This post is the concluding portion of Part III on my series on Food Marketing Institute v. Argus Leader Media.  In this post I argued that even if the Supreme Court remains unconvinced by a formal reenactment or acquiescence argument, like that outlined in Part III-A, the Court should hesitate before upending uniform court of […]

Thacker v. Tennessee Valley Authority: The Relationship Between Judicial Review and Tort Liability (Part II)

by Bernard Bell — Sunday, Oct. 7, 2018

This post concludes my two-part preview of Thacker v. Tennessee Valley Authority, Dkt. 17-1201 (U.S. Sup. Ct.). The first post argued that the Federal Tort Claims Act (“FTCA”) and the Administrative Procedure Act (“APA”) should be interpreted in a complementary manner.  It explained the discretionary function exception’s vital role in allocating controversies arising from government […]

Thacker v. Tennessee Valley Authority: The Relationship Between Judicial Review and Tort Liability (Part I)

by Bernard Bell — Saturday, Oct. 6, 2018

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 […]

Oh SNAP!: The Battle Over “Food Stamp” Redemption Data That May Radically Reshape FOIA Exemption 4 (Part III-A)

by Bernard Bell — Sunday, Sept. 23, 2018

This is my third post regarding the stay of the mandate in Food Marketing Institute v. Argus Leader Media. The Supreme Court appears ready to consider, and potentially upend, the well-developed Circuit law defining the scope of Freedom of Information Act (“FOIA”) Exemption 4 — the National Parks/Critical Mass doctrine.  My first post described the […]

Oh SNAP!: The Battle Over “Food Stamp” Redemption Data That May Radically Reshape FOIA Exemption 4 (Part II)

by Bernard Bell — Wednesday, Sept. 12, 2018

The Supreme Court appears poised to entertain an impending challenging to the well‑developed Circuit law defining the scope of Freedom of Information Act (“FOIA”) Exemption 4 — the National Parks/Critical Mass test.  This post is the second in a series.  The first described the development of the National Parks/Critical Mass doctrine and recounted the somewhat […]