Week in Review

IN THE NEWS

• TikTok filed a lawsuit challenging the constitutionality of a new law that requires TikTok’s Chinese parent company to sell the company within the next year or be banned in the United States. Congress passed this law over concerns that TikTok’s parent company may be using the app to spy on Americans. In its lawsuit, TikTok argues that the government is violating their First Amendment rights and “silencing the 170 million Americans who use the platform to communicate in ways that cannot be replicated elsewhere.” The lawsuit also states that divesting from the parent company is “simply not possible: not commercially, not technologically, not legally.”
• Georgia Governor Brian Kemp signed a bill into law changing Georgia’s election laws ahead of the 2024 presidential election. The law broadens the criteria for successfully challenging other voters’ registration, including evidence of voting or registering in another jurisdiction and tax exemptions indicating a primary residence elsewhere. The law also allows voters to be removed from voter registration lists up to 45 days before an election. Opponents argue that these changes will spur more baseless attacks on voters. Another provision in the law requires homeless people to use the county voter registration office as their address.
• A federal judge in the U.S. District Court for the Eastern District of Arkansas ruled that the Arkansas LEARNS Act does not prohibit public school teachers from teaching students about critical race theory, so long as they do not force students to “express a strong belief” in any particular ideology. The lawsuit was brought by teachers in Arkansas who also argued that the vagueness of the Act caused them to self-censor in front of their students. The court declined to rule in the plaintiffs’ favor on this issue. Arkansas Attorney General Tim Griffin remarked that the ruling “merely prohibits doing what Arkansas was never doing in the first place.”
• The Biden Administration has released a new policy for handling the research of certain toxins and biological agents, such as bacteria, fungi, and viruses. The policy supersedes prior guidelines and expands the list of covered toxins and agents to include harmful substances for crops and livestock. The new measures require researchers to create a risk mitigation plan among other precautions. The policy applies to certain federally funded research projects and any projects conducted at institutions receiving federal funding.
• Minnesota Governor Tim Walz signed a bill into law that aims to protect consumers buying tickets for concerts and other entertainment events. The law increases transparency for ticket buyers by requiring ticket prices, including fees, to be listed clearly at all stages of the purchasing process. The law also adds restrictions to ticket resellers such as prohibiting them from setting up web pages using similar images, text, or URLs to those used by the real venue.
• The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service issued a final rule to strengthen the agency’s enforcement of the Horse Protection Act (HPA). The rule aims to protect horses from “soring”—a practice that intentionally damages a horse’s legs so they move in a more desirable way in horse competitions. The rule amends the HPA by eliminating self-regulation in the industry and adding new reporting requirements for organizers of shows and other events under the HPA’s coverage.
• The Centers for Disease Control and Prevention (CDC) updated its dog importation regulation to reduce the spread of rabies in the United States. Beginning on August 1, 2024, all dogs entering the United States must appear healthy, be at least six months old, be microchipped, and be accompanied by official CDC paperwork. Dogs coming from countries considered at high risk for rabies must undergo a blood test to ensure immunity. A veterinary medicine officer at the CDC explained that the new rules will “bring us up to speed with the rest of the international community.”
• The U.S. Department of Homeland Security issued an unpublished proposed rule that would allow asylum officers to reject claims for asylum within days if there is evidence that the individual is barred because of a terrorist, national security, or criminal threat. At present, asylum eligibility for migrants is not determined until a later stage, which can prolong the asylum approval process. Secretary of Homeland Security Alejandro Mayorkas commented that the intent of the proposed rule is “identifying and removing those individuals who present a security risk and have no legal basis to remain here.”

WHAT WE’RE READING THIS WEEK

• In a forthcoming article in the Columbia Business Law Review, Michael A. Blasie, an assistant professor of law at Seattle University School of Law, argued that for a contract to be enforceable it must be understandable. He stated that this principle is particularly important in contracts of adhesion, where the consumer cannot negotiate the terms. Blaise explained that existing plain language laws that require drafters to make their contracts more readable and understandable are ineffective because they only cover certain contracts and have inconsistent assessment standards. Blaise proposed imposing a duty on sellers to make contracts of adhesion understandable for the “average intended consumer” or the contract will be rendered void.
• In a recent working paper, Adriana Robertson, a professor of Business Law at the University of Chicago Law School, discussed the “regulatory tightrope” that regulators face in deciding when to regulate new products and services. Robertson explained that early regulation is risky as regulators have limited information to make decisions. Robinson also highlighted, however, that regulators face risks if they wait too long to regulate innovation, as the innovation may have already harmed people and the public may object to regulation as they are used to navigating the unregulated industry. Robertson used examples to demonstrate the difficulty of walking this tightrope, such as the pushback the U.S. Securities Exchange Commission received when they tried to regulate cryptocurrencies after years of letting the industry grow unchecked.
• In a recent report published by the Tax Foundation, Jared Walczak, the Vice President of State Projects at the Tax Foundation, proposed several modernizing reforms that states could adopt to ensure that their tax systems are positioned to deal with a remote-friendly working world in the aftermath of the COVID-19 pandemic. Walczak argued that outdated tax regimes often get in the way of social and economic progress. In a world with remote work, companies and workers have more choice over where to live and work, and states that lag on tax policy can find themselves at a disadvantage. For instance, Walczak proposed that states tax workers based on where they live instead of where their office is. Furthermore, he recommended that all states adjust their tax brackets based on inflation, as states that fail to do so will wind up taxing workers more than other states. Walczak concluded by warning states that, if they do not change with the times, workers and businesses may take advantage of their newfound “outward mobility” and move somewhere more favorable.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Samuel Becher, a professor at the Wellington School of Business and Government at Victoria University of Wellington, and Yehuda Adar, a professor of law at the University of Haifa, argued that consumer standard form contracts—or contracts of adhesion—can undermine consumers’ rights and interests. Since these contracts are nonnegotiable, consumers often accept the terms without fully understanding the legal risks, explained Becher and Adar. They recommended that a public agency regulate these contracts by collecting samples and searching for exploitative provisions. Upon finding harmful terms, the agency should alert the business and request the term be removed, altered, or justified, or the business will face penalties, proposed Becher and Adar.