President Obama's FOIA Order
On January 21, 2009, President Obama issued a Presidential Memorandum that I’m hopeful will be the start of undoing much of the excessive secrecy practiced by the previous administration. The memorandum, established that the Freedom of Information Act (FOIA) “should be administered with a clear presumption: In the face of doubt, openness prevails.”
A recent CPR report, By the Stroke of the Pen: Seven Executive Orders to Launch the Obama Agenda, had recommended that President Obama take this exact step. The report also recommends additional actions that would undo other policies adopted by the Bush administration that made government less transparent. Another Presidential Memorandum, Transparency and Open Government, sets the stage for additional steps to be taken, although it does not commit the administration to adopt any specific policies to foster more transparency.
While Congress created exemptions to FOIA disclosure, it also for the most part made those exemptions discretionary, signaling that they were to be used in a manner consistent with the goal of maximum disclosure of information to the public. Nevertheless, the issue of how much information to disclose has become a political ping-pong ball between Republican and Democratic administrations. When George W. Bush took office, then-Attorney …
The Bush Administration's penchant for secrecy was one of the most corrosive aspects of the way it ran the government these last eight years. This preference for conducting government business behind closed doors ran the gamut from military and foreign policy, where secrecy is more easily justified, to regulatory policy, where it is much less justified. President-elect Obama has the authority to issue a new Executive Order on government transparency that could address and reverse the secrecy policies of the last eight years concerning regulatory government. CPR proposed a three-part Executive Order for doing the job, in its November 11 white paper, Protecting Public Health and the Environment by the Stroke of a Presidential Pen: Seven Executive Orders for the President's First 100 Days.
Freedom of Information Act. The Freedom of Information Act (FOIA) is often called the nation’s premier open-government statute, and for …
I’m glad that we have an opportunity to blog about preemption because, as the previous blogs discussed, the folks pushing preemption are so good at creating myths around this subject. One—elaborated on by Tom McGarity—is that the jury system is not to be trusted. Another—discussed by David Vladeck—is that it is up to the courts to decide whether state law is preempted. Both myths share one thing in common: they were created and marketed by those who would like to avoid being held accountable under state common law liability standards for actions that harm people.
Anyone interested in why the first myth—the civil justice system cannot be trusted—is so powerful might want to take a look at a book by William Hamilton and Michael McCann, Distorting the Law: Politics, Media, and the Litigation Crisis. The authors demonstrate how, although the …
CPR has published two white papers on “preemption”—a doctrine used by the courts to determine whether federal regulation of some type of corporate behavior bars a state from subjecting the corporation to its own laws. The first, The Truth About Torts: Using Agency Preemption to Undercut Consumer Health and Safety, came out in September, 2007, and the second, The Truth About Torts: Regulatory Preemption at the National Highway Traffic Safety Administration, just came out. The issue is complicated, but important, and I hope that we might discuss why consumers should be concerned about what appears to be a very arcane subject.
Preemption can affect two aspects of state law: state “positive” law (i.e., state laws and regulations) and state common law (i.e., tort law). The two CPR White Papers address preemption of state tort law, although they also discuss the preemption of positive law …
