Week in Review

IN THE NEWS

• President Joseph R. Biden advocated significant regulatory changes to the Supreme Court, proposing 18-year term limits for justices and a mandatory code of ethics. These reforms aim to address ethical concerns, requiring justices to disclose gifts and avoid conflicts of interest. President Biden also supported a constitutional amendment to limit presidential immunity, challenging the Supreme Court’s ruling that protected former President Donald J. Trump from prosecution for actions taken in his official capacity. Biden’s proposals come at a time many commentators have argued that public confidence in the judicial system is low. Despite President Biden’s push, his proposals face strong opposition in a divided Congress and are unlikely to be adopted.
• The New York State Education Department issued new rules that would ban the use of realistic active shooter drills in schools to reduce trauma for students. The new rules, which will take effect in the 2024-25 school year, will prohibit the use of props or actors that mimic the realities of violence during active shooter drills. The rules will require schools to notify staff members, students, and parents of the drills in advance. Advocates of this approach argue that realistic active shooter drills can traumatize students and normalize violence, while opponents contend that active shooter drills should be as realistic as possible to prepare students and staff.
• The U.S. Department of State issued a final rule modifying passport application regulations for minors to increase flexibility and decrease costs for parents. The updated rule allows a non-present parent of applicants under 16 to sign a statement of consent before a passport specialist at a United States public passport agency instead of a notary public. This change seeks to relieve the non-applicant parent of the time, cost burdens, and additional paperwork of seeking a notary public, increasing the efficiency of the application process.
• The Federal Trade Commission (FTC) issued a final rule amending the ophthalmic practice rule, also known as the “eyeglass rule,” to require that eye care practitioners obtain a signed confirmation of receipt from patients receiving an eyeglass prescription. The eyeglass rule aimed to ensure that patients received their prescriptions and could price-shop for eyeglasses from locations beyond their prescriber. Despite a provision requiring the automatic release of prescriptions to patients, the FTC found prescribers frequently out of compliance. By mandating signed release forms for both paper and electronic prescriptions, the new rule aims to increase compliance and allow consumers to more easily access the eyeglass market.
• The Federal Communication Commission issued a final rule establishing labeling protocol for internet of things (IoT) products to increase the safety and confidence of purchasers. The new labels will include a U.S. government certification mark and a QR code that “directs consumers to a registry with specific information about the product.” The rule aims to assure customers of the cybersecurity of IoT products. Participation in the labeling program is voluntary and applies to all IoT products, defined as “IoT devices and any additional product components…that are necessary to use the IoT device beyond basic operational features.” Beyond benefiting the consumer, the rule may encourage manufacturers to consider security principles when developing IoT products.
• The U.S. Department of Agriculture (USDA) proposed a rule intended to reduce instances of Salmonella contamination from raw poultry products. The proposed rule reflects USDA’s efforts to reevaluate its strategy for controlling Salmonella bacteria, which infect over 1 million humans in the United States each year, with poultry among the leading sources of foodborne infections. The new framework would establish final product standards to prohibit adulterated raw chicken and turkey products from entering commerce. The proposal would also require all poultry slaughter businesses to develop and implement written procedures to prevent Salmonella contamination, including sampling and microbial monitoring programs.
• The Federal Communications Commission (FCC) proposed a new closed captioning rule that would alleviate registration obligations for some video programmers. Under the new rule, video programmers that exclusively broadcast on Public, Educational, and Governmental (PEG) channels that are exempt from closed captioning requirements would no longer be obligated to register with the FCC and certify their closed captioning compliance. The rule would also allow administrators of non-exempt PEG channels to certify closed captioning compliance for the programming on their channels on behalf of programmers. The proposal is intended to “to simplify compliance procedures and reduce administrative costs for video programmers” while maintaining the quality and availability of closed captioning.
• A federal judge in Alabama refused to block the Biden Administration from enforcing new anti-discrimination protections for LGBTQ students in four Republican-led states. The judge, appointed by former President Trump to the United States District Court for the Northern District of Alabama, rejected the arguments presented by Alabama and other states, stating that the plaintiffs failed to demonstrate that the Biden Administration’s rulemaking was unreasonable or lacked proper explanation. The decision diverges from rulings by six other judges who have previously found the rules invalid in 21 other states. The regulations, issued by the U.S. Department of Education, interpret the federal law prohibiting sex discrimination in education, known as Title IX, to include gender identity and sexual orientation. These protections extend to barring harassment, such as refusing to use a transgender student’s preferred pronouns, and modifying the procedures schools must follow in investigating student misconduct.

WHAT WE’RE READING THIS WEEK

• In a recent National Bureau of Economic Research working paper, Johanna Catherine Maclean, a research associate at George Mason University, and Sabrina Wulff Pabilonia of the Bureau of Labor Statistics investigated the impact of paid sick leave on parents’ ability to provide childcare. Although the United States does not have a mandated paid sick leave, 15 states and 17 cities have adopted mandates. Maclean and Pabilonia explored the impact of the paid sick leave policies in these states. They found that after the mandates, parents “reported working fewer minutes per day” and, in turn, increased time spent on primary childcare by 4.9 percent and facetime spent with children by 3.4 percent. Women with children under six years old primarily drove these findings. Maclean and Pabilonia also found that leisure and sleep time increased, primarily for men living with school-aged children.
• In an article in the Yale Journal on Regulation, Asaf Eckstein, associate professor at Hebrew University, and Roy Shapira, professor of law at Reichman University, argued that corporate compliance programs rely heavily on outside compliance advisors for compliance functions rather than on internal actors such as CEOs, general counsels, and chief compliance officers. Eckstein and Shapira contended that outside compliance advisors perform essential tasks such as designing reporting systems and conducting internal investigations, but face little accountability due to both difficulty in litigating claims against them and conflicts of interest that prevent internal corporate actors from demanding rigorous compliance. Eckstein and Shapira proposed policy reforms to improve corporate compliance, including courts interpreting “shareholders’ right to inspect their company’s books” more broadly and increased legal liability for “corporate wrongdoers who rely on outside experts.”
• In a recent article in the LSU Law Journal for Social Justice and Policy, Robert Craig, an associate director at Abolish Private Prisons, argued that based in the U.S. Supreme Court’s decision in Dobbs, which overturned Roe v. Wade, private prisons could be deemed unconstitutional under the Due Process clause. Craig first analyzed private prisons’ constitutionality under a traditional heightened scrutiny test, a test that determines whether government interests outweigh rights’ violations, and found that a Court could plausibly find no benefit to private prisons in the face of rights’ violations to prisoners. Craig looked at the history of punishment and found no history of long-term operation of private prisons by a party financially invested in the continued imprisonment of those under their care. Taken together with the inherent conflicts between profit and liberty, Craig argued that such an arrangement plausibly violates the U.S. Constitution’s Substantive due process protections.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Eric W. Orts, the Guardsmark Professor at the Wharton School of the University of Pennsylvania, described how decisions in the past few years by the Supreme Court have eroded the legitimacy of the Supreme Court, which justifies changes to the current Court’s structure. Orts argued the Supreme Court has lost multiple forms of legitimacy: legal legitimacy, empirical political legitimacy, and substantive political legitimacy. Legal legitimacy refers to whether the enactment of laws and their application follow agreed standards of rationality and interpretation, empirical political legitimacy refers to whether citizens in a specific government believe the law is consistent with their fundamental values, and substantive political legitimacy refers to whether a legal system adheres to a minimum standard of moral coherence. Orts argued that decisions in New York State Rifle & Pistol Association v. Bruen, Dobbs v. Jackson Women’s Health Organization, and West Virginia v. EPA created questionable precedent and harmed the ability of the government to protect future generations. Orts proposed various methods of reform including expanding the Court to 13 seats, establishing term limits of 18 years, or a mandatory retirement age of 75.