Week in Review

IN THE NEWS

• The U.S. Supreme Court, in a 5-4 vote, held that Alabama’s voting maps discriminate against Black voters and violate Section 2 of the Voting Rights Act of 1965. The ruling could shift control of the closely divided U.S. House of Representatives, as Alabama is likely to draw new maps that would allow Black voters, who are overwhelmingly Democrats, to elect their preferred candidates in at least two districts. Justice Clarence Thomas, in dissent, wrote that the majority will require Alabama to redraw its districts so Black voters can control a share of seats proportional to their share of Alabama’s population and contended that Section 2 “demands no such thing.”
• The Oklahoma Statewide Virtual Charter School board voted to approve St. Isidore of Seville Catholic Virtual School as the nation’s first religious charter school. Although religious schools already receive government money, St. Isidore would be the first religious school to be fully funded by the government. Rachel Laser, President and Chief Executive of Americans United for Separation of Church and State stated that “it’s hard to think of a clearer violation of the religious freedom of Oklahoma taxpayers and public-school families.” Supporters of the Oklahoma board’s decision, however, have pointed to 2020 and 2022 Supreme Court rulings, which held that if a state chooses to subsidize private education, it cannot then disqualify some private schools solely because they are religious.
• The U.S. Food and Drug Administration (FDA) issued draft guidance with updated recommendations to modernize how clinical trials are conducted. M. Khair ElZarrad, Director of the Office of Medical Policy, said these draft recommendations aim to streamline clinical trials by increasing efficiency and flexibility as the trial enterprise continues to evolve. To facilitate data collection, the draft guidance also encourages the use of fit-for-purpose digital health technologies, such as wearable sensors. FDA’s draft guidance will be open for public comment for 60 days.
• The U.S. Environmental Protection Agency (EPA) withdrew a proposed rule to drop pyrolysis from Clean Air Act emissions standards. Pyrolysis is the process by which organic materials are transformed into their gaseous components and has numerous applications, including waste processing. EPA had previously proposed to drop pyrolysis in 2020, but ultimately decided this week to withdraw the proposal after commenters argued that Clean Air Act emissions should apply to any combustion associated with waste processing, including pyrolysis. Some groups, such as the Plastics Industry Association, opposed the decision, arguing that regulating pyrolysis would discourage the use of certain technologies that employ it and are needed to meet the country’s recycling goals.
• The Louisiana legislature passed several laws targeting the LGBTQ+ community, including a ban on gender-affirming care for transgender minors, a “Don’t Say Gay” bill which prohibits discussion of gender identity and sexual orientation in K-12 schools, and legislation governing pronoun usage in schools. Louisiana Governor John Bel Edwards indicated that he will veto the bill. The American Civil Liberties Union of Louisiana described the bill as “ extreme government overreach” for all Louisianans. These measures are part of a wave of over 525 anti-LGBTQ+ bills introduced in 41 states in 2023.
• Florida Governor Ron DeSantis signed Senate Bill 262 into law, creating the Digital Bill of Rights in Florida. The legislation grants Floridians various rights concerning personal data on social media, the manipulation of search engine results, and the protection of children from personal data collection. The new law expands on a separate bill recently signed by Governor DeSantis, which protects students’ online information. Governor DeSantis emphasized that “Floridians should have the right to control their own personal data.”
• A federal judge ruled that a Tennessee law banning drag shows in venues where children could view them is unconstitutional because it violates freedom of speech protections. Parker reasoned that the law, the Adult Entertainment Act, is overly broad because it applies to anywhere a child could be present. The plaintiffs, Friends of George’s, a Memphis-based theater group, had argued that the law would put its members at risk of felony charges for producing the same shows the group has held for years. Parker concluded that although protecting the well-being of minors is important, the law was not targeted enough to accomplish this goal without violating free speech.

WHAT WE’RE READING THIS WEEK

• In a recent working paper, Jill Fisch, a professor at the University of Pennsylvania Carey Law School and Adriana Robertson, a professor at the University of Chicago Law School, critiqued the U.S. Securities and Exchange Commission’s proposed amendments to the “Names Rule.” The proposed amendments are intended to prevent companies from falsely claiming that their environmental, social, and governance (ESG) mutual funds are more eco-friendly than they actually are. The proposed amendments require funds with names using ESG-related terms to invest 80 percent of the funds’ assets in companies that meet certain standards. Fisch and Robertson contended that the ESG term is too general and expressed worry that the names of funds might not fully meet what investors expect, which could hinder innovation.
• In a forthcoming article in the journal Common Knowledge, Cary Coglianese of the University of Pennsylvania Carey Law School and Daniel Walters of the Texas A&M University School of Law clarified two conceptions of apolitical administrative governance: minimizing discretion and avoiding favoritism. Coglianese and Walters explained that discretion is inevitable because value judgments are necessary in administrative decision-making. But they also explained that discretion should be used to advance broad public values rather than the narrow interests of administrators or their friends or supporters. Favoritism, they argued, is not an inevitable component of administrative decision-making, and anti-favoritism is desirable because it reinforces the democratic values of openness and fairness, Coglianese and Walters concluded.
• The Government Accountability Office (GAO) released a report on satellite requirements necessary to modernize military GPSs to include more jam-resistant technology. This technology, known as M-code, is designed to increase GPS signal security and improve the anti-jamming capability of military receivers. The GAO made two recommendations including assessing the number of satellites required to meet operational needs and either develop a business case for M-code or do not initiate the effort.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Kyle Velte, a professor at the University of Kansas School of Law, argued that the legal profession can advance LGBTQ+ rights by improving how attorneys are regulated. Velte noted that, historically, LGBTQ+ communities have faced extensive discrimination and exclusion by the legal field and regulation. Velte proposed strategies, such as mandatory continuing education programs on diversity, equity, and inclusion and more inclusive rules of professional conduct, that can allow attorneys to reduce anti-LGBTQ+ biases and lead to systemic improvements in the profession.