Week in Review

IN THE NEWS

• In a 5-4 vote, the U.S. Supreme Court held that, under the Federal Arbitration Act, courts may not order a class action-like arbitration unless a contract’s arbitration clause unambiguously indicates that its parties have agreed to “class arbitration.” Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan each filed dissenting opinions. Justice Kagan argued that the contract at issue was broad enough to include class arbitration. Even if the contract were ambiguous, Justice Kagan wrote, the Court should have respected state law, which would have required the Court to interpret the contract in favor of the party that did not write it.
• U.S. Secretary of State Michael Pompeo announced that the U.S. Department of State will end all exceptions to its trade sanctions on Iran. “The United States is sending a clear message to the Iranian regime that its destabilizing activities and global terrorist campaign has serious consequences,” the White House said. Ayatollah Ali Khamenei, the Supreme Leader of Iran, reportedly responded that “Iranians won’t give in” to the United States’ demands.
• The U.S. Supreme Court will decide whether Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating based on sexual orientation and transgender status. The law currently bans discrimination based on sex, and the U.S. Equal Employment Opportunity Commission has taken the position that Title VII also prohibits discrimination based on sexual orientation and gender identity. In granting review, the Court will consider a New York case that held that Title VII encompasses sexual orientation, a Georgia case that ruled that sexual orientation was not included, and also a Michigan case that decided that transgender status was included.
• Facebook announced that it expects the Federal Trade Commission (FTC) to fine them up to $5 billion in connection with an ongoing investigation into the company’s privacy practices. Facebook has been in negotiation with the FTC since last year over allegations that the company violated a 2011 consent decree it signed with the FTC, under which Facebook promised to enhance privacy protections for user data. A fine of this size reportedly would be the largest penalty ever assessed against a technology company by the FTC.
• The U.S. Court of Appeals for the D.C. Circuit affirmed the refusal of the U.S. Environmental Protection Agency (EPA) to expand the Northeast Ozone Transport Region (NOTR). New York and seven other states already included in NOTR had petitioned EPA to add eight upwind states to NOTR in an attempt to bring midwestern polluter states within NOTR’s mandatory ozone controls. But Judge A. Raymond Randolph affirmed EPA’s rejection of the petition, holding that the agency’s decision comported with the Clean Air Act and “was a reasonable exercise of the agency’s discretion” under the Administrative Procedure Act.
• The Board of Trustees of the U.S. Social Security Administration released its 2019 annual report, which includes income and expenditure projections for the coming year. The report projected that Social Security costs will exceed income starting in 2020, and that combined trust fund reserves, from which the program draws when costs exceed income, will be depleted by 2035. The Board wrote that Congress should “address the projected trust fund shortfalls in a timely way in order to phase in necessary changes gradually.”
• Nevada Governor Steve Sisolak signed a bill committing the state to procure all of its energy from renewable sources by 2050. The bill also requires electric utilities to derive 50 percent of the electricity sold to retail customers from renewable sources by 2030 and streamlines the process by which electric utilities acquire renewable energy facilities. Nevada is reportedly the fourth state to commit to a ban of fossil fuels.
• The Consumer Financial Protection Bureau (CFPB) announced that it will provide more up-front information when issuing document requests to companies it is investigating, including information about the alleged violations and applicable laws. The policy follows recent comments by CFPB Director Kathy Kraninger highlighting the agency’s commitment to ensure “transparent processes” and avoid imposing “unmanageable burdens” on financial institutions.
• The U.S. Office of Management and Budget (OMB) issued a memo updating quality standards for data used by government agencies in rulemaking and other decisions. The Information Quality Act of 2001 required agencies to adopt basic data quality standards and provide an administrative mechanism allowing the public to request corrections of data not meeting those standards. The memorandum directs agencies to respond to correction requests in a more timely and thorough manner and to submit their responses to OMB for review prior to release.

WHAT WE’RE READING THIS WEEK

• What influence, if any, does the executive branch have on deportation hearing outcomes? In a study forthcoming in the Georgetown Law Journal, Catherine Kim of the University of North Carolina School of Law and Amy Semet of Princeton University found that although the identity of the President who appointed an immigration judge was not a significant predictor of outcomes, the identity of the President at the time of the decision mattered significantly. Bush-appointed judges were 14 percent less likely to order deportation under the Obama Administration than under the Trump Administration, and 12 percent less likely to order deportation under Bush than under Trump, according to Kim and Semet.
• In a blog post, Ben Thompson of Stratechery proposed a regulatory framework for the Internet that responds to current proposals to regulate online content providers. Thompson distinguished online content platforms such as YouTube and Facebook, which are funded by advertising dollars rather than by user subscriptions, from other online content platforms that users pay for and therefore respond to market forces. Considering these platform types to be distinct, Thompson said, would allow state regulators to confine their efforts to advertising-supported platforms and the problematic content they host, leaving user-supported platforms and Internet infrastructure free from the regulatory intrusion that may negatively impact free access and speech.
• The Editorial Board of The Washington Post argued that some state legislators who are eager to have the question of abortion rights reach the U.S. Supreme Court have been spurred to pass anti-abortion legislation. The Editorial Board emphasized that a record number of bills restricting or banning abortion have been filed in state legislatures. Some of these bills, known as fetal heartbeat bills, would ban abortion around the sixth week of pregnancy, effectively preventing some women who are unaware that they are pregnant from obtaining the procedure.