Week in Review

IN THE NEWS

• The U.S. Court of Appeals for the Ninth Circuit upheld the Seattle Police Department’s “Use of Force” rule, which requires officers to consider a number of factors, including the necessity and proportionality of their response, before using a firearm “to achieve a law-enforcement objective.” The 125 officers who challenged the use of force regulation argued that it infringed upon their Second Amendment right to use firearms for self-defense.
• The Sierra Club sued the U.S. Environmental Protection Agency for its “unlawful failure to respond to Sierra Club’s public records request for external communications” and “the agency’s improper withholding of requested records, in violation of the Freedom of Information Act” and the Administrative Procedure Act. Michael Brune, Sierra Club’s Executive Director, stated that “Americans deserve transparency about their collaboration behind closed doors with corporate polluters to roll back life-saving health and environmental safeguards.”
• New York Governor Andrew Cuomo (D) introduced a proposal to subject credit reporting bureaus to the state’s cybersecurity regulations. New York cybersecurity regulations mandate, in part, that companies have a “Chief Information Security Officer,” limit access to information systems containing non-public information, and conduct risk assessments to inform the design of the cybersecurity programs.
• The U.S. District Court for the Northern District of Illinois prevented U.S. Attorney General Jeff Sessions from withholding a federal grant that “supports state and local law enforcement efforts” if the city of Chicago did not follow certain immigration related requirements. In a nationwide order, the court declared that Sessions could not impose the requirements that city officials tell the federal government when alleged violators of immigration laws were to be released from prison and that city officials “provide immigration agents with access to City detention facilities.”
• U.S. Senator Charles Schumer (D-N.Y.) invited the Federal Trade Commission (FTC) to initiate a “gouge watch” to monitor prices of gasoline. Schumer said he was concerned that gasoline prices, which had gone up since Hurricanes Harvey and Irma, “will not fall as fast as they should” due to “big oil” “making a buck off of the mess.” To support his demand, Schumer noted that the FTC has, in the past, examined price gouging in the oil industry.
• The FTC approved Walgreens’ proposal to acquire over 1,900 Rite Aid stores for $4.38 billion. In June, Walgreens withdrew its original proposal to buy over 2,100 Rite Aid stores before receiving FTC approval. The FTC concluded that this “slimmed down” deal is “not likely to lead to higher prices or otherwise harm consumers.”
• The U.S. Food and Drug Administration (FDA) sent a proposal for a study on cigarette warnings to the Office of Management and Budget. The study would be “a voluntary online experiment conducted with consumers” “to assess whether potential textual warnings statements…promote greater public understanding of the negative health consequences of cigarette smoking.” The study follows a federal court decision holding that a cigarette labeling law violated the First Amendment; FDA seeks to fix the violation with “new rulemaking” helped along by the current planned research.
• The National Highway Traffic Safety Administration released voluntary guidance on automated driving systems to support “industry innovators, States and other key stakeholders as they consider and design best practices relative to the testing and deployment of automated vehicle technologies, while informing and educating the public and improving roadway safety.”
• The U.S. Consumer Product Safety Commission adopted a January 2017 rule which revised, modernized, strengthened, and made “more effective” the Federal Policy for the Protection of Human Subjects. The January rule was “intended to better protect human subjects involved in research, while facilitating valuable research and reducing burden, delay, and ambiguity for investigators.”

WHAT WE’RE READING THIS WEEK

• In a forthcoming paper for the New York University Journal of Law & Liberty, Jonathan H. Adler of the Case Western Reserve University School of Law argued that “government regulation threatens to hamper…the use of life-saving technologies, such as electronic cigarettes.” Adler asserted that FDA’s choice to have electronic cigarettes “regulated as tobacco cigarettes threatens to cartelize and ossify a dynamic, harm-reducing industry.”
• In a forthcoming article for Cornell Law Review, Cheryl B. Preston, a professor at Brigham Young University, J. Reuben Clark Law School, argued that the scheme for regulating lawyers has not caught up with changes in technology. Preston contended that innovations have created “opportunities for unethical behavior in the use of electronic communications and storage” that the Model Rules of Professional Conduct do not address.
• In a forthcoming paper for the University of California Davis Law Review, Jack M. Balkin, a professor at Yale Law School, discussed the move from “the early days of the Internet to the Algorithmic Society” – featuring the use of “algorithms, artificial intelligence agents, and Big Data to govern populations.” Balkin argued that the First Amendment will be inadequate to protect the “practical ability to speak” and described “how to regulate online business that employ Big Data and algorithmic decision making consistent with free speech principles.”