Week in Review

IN THE NEWS

• The U.S. Court of Appeals for the Sixth Circuit halted temporarily the Federal Communications Commission (FCC)’s net neutrality rules that aimed to secure fast, open, and fair internet service nationwide. The rules attempt to address discriminatory practices, such as prioritizing paid content or slowing down certain users’ internet connection, and impose transparency requirements. The FCC reinstated the rules after the Trump Administration repealed them in 2017. Critics of the rules, however, argue they unnecessarily expand government control over the internet. The petitioners successfully invoked Loper Bright Enterprises v. Raimondo, which overruled Chevron v. Natural Resources Defense Counsel, and the Sixth Circuit delayed the rules’ implementation until at least August 5, 2024.
• California Governor Gavin Newsom signed a bill into law prohibiting California school districts from mandating their staff to inform parents of their childrens’ gender identities and sexual orientations. The law serves as a pushback to the policies of many California school districts requiring that parents are notified of changes in their child’s gender identification. Advocates of the law claim that it will protect LGBTQ students and prevent schools from meddling in the relationship between parents and their children. Opponents contend that the law damages trust between school districts and parents and prevents schools from being transparent with parents.
• The U.S. Court of Appeals for the D.C. Circuit upheld the FCC’s decision to license 7,500 new SpaceX satellites to provide internet service for “‘unserved and underserved’” regions. DISH, a satellite owner and SpaceX competitor, argued that the new SpaceX satellites would cause “‘unacceptable interference’” to its satellites. Other groups raised concerns about the satellites’ environmental impact. The FCC declined to consider DISH’s evidence of interference and concluded the SpaceX satellites would not have a significant environmental impact. The D.C. Circuit found that the FCC’s decisions were “reasonable and reasonably explained.” The FCC’s approval is conditional on SpaceX securing a favorable finding from the International Telecommunication Union, but in the meantime, SpaceX can deploy satellites at its “‘own risk.’”
• Multiple groups that rely upon federal lands for their livelihoods sued the Bureau of Land Management, seeking to set aside a final rule that is aimed at conservation efforts. The rule enables conservation to be considered a “use,” similar to other uses such as grazing, under the Federal Land Policy and Management Act. In a press release, the groups challenging the rule argued that it “threatens generations of family ranching operations” in the United States “by undermining the long-held balance of multiple-use management.” Two other lawsuits, one filed by North Dakota, Idaho, and Montana, and the other filed by Utah and Wyoming, have similarly challenged the rule.
• The U.S. Court of Appeals for the Eighth Circuit struck down as unconstitutional a Minnesota law preventing individuals between the ages of 18 and 20 from possessing a permit to carry a gun. The court applied the plain text of the Second Amendment in accordance with standards set forth in New York State Rifle & Pistol Association v. Bruen and United States v. Rahimi. The court determined that “law-abiding 18 to 20-year-old Minnesotans are unambiguously members of the people” protected by the Second Amendment, which “does not have an age limit.” The court then held that Minnesota failed to meet its burden to show that the challenged law was consistent with the United States’ historical tradition of gun regulation.
• A judge in the U.S. District Court for the Central District of California ruled that the U.S. Department of Veterans Affairs (VA) discriminated against homeless veterans through its housing practices in Los Angeles. The court found that the VA’s practice of leasing its land to third-party developers who place income restrictions on housing hurt some of the most injured veterans who had too many benefits to qualify for this housing. In his opinion, Judge David O. Carter determined that, for these veterans, their disabilities can “disqualify them from residing in permanent supportive housing.”
• The Consumer Financial Protection Bureau (CFPB) proposed a new rule to regulate lenders of paycheck-advance products—popular loans that workers take out to receive their paychecks before the typical schedule. The proposed rule would clarify that many paycheck-advance products qualify as consumer loans under the Truth in Lending Act and require disclosures about fees and interest. The CFPB found that the average worker takes some portion of nearly every bi-weekly paycheck out as a loan. CFPB Director Rohit Chopra explained that, because most workers receive paychecks after completing their work and many expenses require prepayment, people without substantial savings may be trapped “in cycles of debt.” This cycle is exacerbated as workers also incur fees from lenders charging for early access or soliciting “tips.” The rule, however, would not impose new requirements on lenders.
• The Department of Defense proposed a rule barring assistance to entertainment projects, such as documentaries or motion pictures, complying, or likely to comply, with requests from the People’s Republic of China (PRC) or the Chinese Communist Party. The proposed rule would be intended to prevent censoring entertainment content to advance national interests of the PRC. The proposed rule would discuss information used by the Defense Department to decide whether to assist entertainment projects.

WHAT WE’RE READING THIS WEEK

• In an article in the Southern California Law Review, Jill Fisch, the Saul A. Fox Distinguished Professor of Business Law at the University of Pennsylvania Carey Law School, and Adriana Robertson, Donald N. Pritzker Professor of Business Law at the University of Chicago Law School, criticized a Securities and Exchange Commission (SEC) rule that addresses greenwashing, or the use of misleading names to give the appearance of a socially responsible mutual fund. To curb investor confusion, the SEC amended the Investment Company Act, to require mutual funds to invest at least 80 percent of their assets “in accordance with the investment focus the fund’s name suggests.” Fisch and Robertson argued the amendment is “unlikely to reduce the potential for greenwashing” and “deters innovation.” Fisch and Robertson claimed that the rule outlaws legitimate investing strategies and places too high a standard for mutual funds. Fisch and Robertson concluded that the existing evidence does not “warrant additional regulatory intervention.”
• In a report issued by the Urban Institute, Linda J. Blumberg and Michael Simpson, both researchers at the Institute, found that the public insurance plan offered by Chris Murphy and Jeff Merkley’s Choose Medicare Act did not reduce access or affordability to health care services for racial minorities. Blumberg and Simpson found that the public insurance option compensated providers at significantly lower rates than those standard for private insurance plans. Potential concerns of the plan were that health care providers would provide differential treatment to those paying with the public option compared to the private option and that racial minorities may disproportionately pay using the public option. Blumberg and Simpson found, however, that although white people would save the most under the reform, all races would experience some savings in healthcare spending.
• In an essay in the Administrative Law Review, Cass R. Sunstein, the Robert Walmsley University Professor at Harvard Law School, argued against the misconception that governments only use behavioral science to influence individual behavior. Instead, Sunstein claimed that behavioral science in policymaking is also focused upon wide-ranging reforms for companies and other entities, in areas such as occupational safety, the environment, and consumer protection. Sunstein further contended that using behavioral science to influence individuals does not “crowd-out” the effectiveness of large-scale systemic reforms in ways that other scholars have suggested. To Sunstein, employment of “behavioral science within the administrative state can be counted among the most important developments in recent decades” and it will be a long-term fixture in the administrative state.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Jesus M. Barajas, an assistant professor of environmental science and policy at the University of California, Davis, argued that regulation is required to address unique transportation needs of rural and disadvantaged communities. Residents in rural communities without cars face additional problems associated with their transportation challenges, such as reduced job opportunities, social isolation, and the inability to receive quality health care. Barajas asserted that solving transportation challenges faced by residents in rural communities requires solutions such as car sharing and lowering transportation costs. Barajas also called for sustained engagement with these communities to ensure their residents’ needs are met.