Week in Review

IN THE NEWS

• The U.S. Department of Justice and Federal Trade Commission are seeking public comments on draft merger guidelines designed to help agencies determine whether potential mergers and acquisitions comply with federal antitrust laws. The guidelines include 13 principles that an agency may use when determining whether a proposed merger would violate antitrust laws. Federal Trade Commission Chair Lina M. Khan said that the “guidelines contain critical updates while ensuring fidelity to the mandate Congress has given us and the legal precedent on the books.”
• The Office of Information and Regulatory Affairs in the Office of Management and Budget released guidance encouraging agencies to seek broader public participation in their regulatory actions. The guidance suggests a variety of practices that agencies might use to gain input from a range of interested parties, including underserved communities. These practices include building trusted relationships with communities affected by a proposed regulation and making regulatory materials more accessible to the public. The Office of Information and Regulatory Affairs stated that it will continue to engage with agencies and the public over its guidance to understand how implementation can be improved.
• The U.S. Department of Labor announced a final rule requiring employers in high-hazard industries to submit work-related injury and illness information to the Occupational Safety and Health Administration (OSHA). Some of the data employers submit will become publicly available on OSHA’s website. OSHA stated that providing public access to this data will reduce occupational injuries and illnesses and help potential customers and employees make informed decisions.
• Iowa Governor Kim Reynolds signed a bill adopting a six-week abortion ban. The new law provides exceptions for maternal life-threatening situations, fetal abnormalities, and miscarriages. A federal judge in Iowa, has since placed a temporary hold on the ban, allowing abortion up to 22 weeks of pregnancy.
• The U.S. House of Representatives voted to pass a defense bill for fiscal year 2024 that would restrict abortion access, transgender care, and diversity training for military personnel. The bill is unlikely to succeed in the U.S. Senate without a compromise with the House, but some House Republicans have threatened to jeopardize troop pay, current Pentagon programs, and national defense policy. House Minority Leader Hakeem Jeffries (D-NY), who opposed the bill, stated that “Republicans have hijacked a bipartisan bill that is essential to our national security.”
• The Ohio House introduced a bill which would prohibit drag performances in public locations where children might be present. The bill, if signed into law, would effectively restrict drag events to adult-only venues such as bars. Violations of this proposed law could lead to misdemeanor or felony charges. The bill follows similar legislation in at least eight other states.
• New Jersey Governor Phil Murphy signed a bill into law establishing the New Jersey Maternal and Infant Health Innovation Authority, a new agency aiming to reduce birth-related fatalities. The agency will oversee New Jersey’s  Maternal and Infant Health Innovation Center which offers prenatal and postnatal services as well as promotes research on new models of care. The new agency will also have the power to provide grants and loans to public and private organizations that advance maternal health.
• The Virginia Department of Education released updated guidance on student gender identity and parental rights in the state’s public schools. The guidance calls for students to be referred to by the names and pronouns in their official records unless the school has received parental approval to use something else, and that students use bathrooms corresponding to their sex and not their gender identity except where federal law says otherwise. Virginia Governor Glenn Youngkin said that these policies are part of his administration’s “commitment to ensure that every parent is involved in conversations regarding their child’s education, upbringing, and care.”

WHAT WE’RE READING THIS WEEK

•  In a recent article in the Center for American Progress, Kyle Ross, a research associate at American Progress,  argued that the current Supplemental Nutrition Assistance Program Employment and Training Program (SNAP E&T) program has several flaws that can and should be addressed in the upcoming Farm Bill reauthorization.. Ross explained that the SNAP E&T program aims to provide job opportunities  for individuals facing employment barriers, such as those returning from prison and those with limited education. Individuals currently lose their SNAP benefits, however, if their training leads to wages that place them above a certain  income threshold. In turn, Ross recommends that in the upcoming Farm Bill, Congress disregard the income earned from E&T activities when determining eligibility for SNAP benefits in order to provide additional support for families seeking stable financial footing.
• ​​In a recent working paper, Yassine Lefouili, Professor of Economics at the Toulouse School of Economics, Leonardo Madio, Research Fellow at the University of Padova, and Ying Lei Toh, an economist at the Federal Reserve Bank of Kansas City, examined the impact of privacy regulations on the innovation incentives of firm that profits from sharing user data. Lefouili, Madio, and Toh argued that when the number of users concerned about privacy is low, privacy regulations can deter innovation, but if there is a large proportion of users concerned with privacy, privacy regulations could spur innovation. Lefouili, Madio, and Toh  concluded that stricter privacy regulations may either suppress or enhance innovation depending on the privacy consciousness of the user base, and that these factors should be considered when firms are formulating data disclosure policies.
• In a forthcoming article in the Southern California Law Review, Chris Brummer, a professor at Georgetown University Law Center, Yesha Yadav, Associate Dean and a professor at Vanderbilt Law School, and David Zaring, a professor at the Wharton School at the University of Pennsylvania, discussed why agencies choose to regulate by enforcement and the risks involved in doing so. Brummer, Yadav, and Zaring explained that regulation by enforcement refers to an agency’s decision to pursue litigation rather than administrative rulemaking to test novel legal theories. Brummer, Yadav, and Zaring identified partisan politics as a potential impetus for regulation by enforcement because litigation can further the objectives of elected representatives. They also argued that regulation by enforcement is more likely to be accepted when it is used as a last, rather than first resort.

EDITOR’S CHOICE

• In a recent essay in The Regulatory Review, Cara McClellan, the Director and Associate Practice Professor of the Advocacy for Racial and Civil Justice Clinic at the University of Pennsylvania Carey Law School, argued that holistic college admissions policies that consider race provide educational benefits to the entire student body. McClellan discussed how limiting the consideration of race in the admissions process disadvantages students of color, for whom race is likely a core aspect of their identity. McClellan also highlighted the importance of compliance with Title VI of the Civil Rights Act of 1964, which requires educational institutions to eliminate unjustifiable policies that disproportionately exclude students of color, such as legacy admissions.