Week in Review

IN THE NEWS

• President Donald Trump issued a memorandum ordering the U.S. Department of Justice to quicken the rulemaking process to regulate bump stocks. Now that the comment period has ended, President Trump asked the Justice Department to propose “a rule banning all devices that turn legal weapons into machine guns” and said, “I expect that these critical regulations will be finalized…very soon.”
• The U.S. Supreme Court held unanimously that the Dodd-Frank Wall Street Reform and Consumer Protection Act covers whistleblowers only when they disclose company problems to the U.S. Securities and Exchange Commission—and not when they disclose to others, like higher authorities within the company itself. The Court said that the applicable provision of the Dodd-Frank Act provided “unequivocal” support for the Court’s interpretation of whistleblower rules.
• The U.S. Department of Health and Human Services, the U.S. Department of the Treasury, and the U.S. Department of Labor issued a proposed rule “to expand the availability of short-term, limited-duration health insurance” by lengthening the duration of that coverage. This type of insurance is intended “to fill temporary gaps in coverage” that a person may face. The agencies proposed the rule in response to an October 2017 Executive Order in which President Trump requested that the government take action to increase access to health care.
• The United States’s Commodity Futures Trading Commission (CFTC) along with the United Kingdom’s Financial Conduct Authority (FCA) announced that they are entering into a cooperation arrangement so that both regulators may better understand innovation in financial and regulatory technology. The arrangement implemented “a mechanism for information sharing, referrals, and earning from trials.”
• The U.S. Court of Appeals for the Second Circuit affirmed a lower court’s decision holding that Rite Aid did not violate the Telephone Consumer Protection Act (TCPA) by sending pre-recorded flu shot reminder messages. In its order, the three-judge panel pointed to its January decision in a similar case holding that a New York-based hospital did not violate the TCPA by sending flu shot reminders via text message to customers because the customer consented to being contacted when he signed forms at an initial visit.
• The U.S. Internal Revenue Service proposed a rule that would remove 298 regulations that are “no longer necessary because they do not have current or future applicability” under the Internal Revenue Code. The rule would also amend 79 regulations to reflect the removal of the 298 rules. The proposal is pursuant to Executive Order 13,777—which directed agencies to establish task forces that would identify existing regulations that are outdated, unnecessary, or ineffective—and Executive Order 13,789—which directs that immediate action be taken to “reduce the burden existing tax regulations impose on American taxpayers.”
• The U.S. Securities and Exchange Commission issued guidance “to assist public companies in preparing disclosures about cybersecurity risks and incidents.” The guidance explained that public companies should disclose cybersecurity risks to their investors and take steps to keep executives from trading in the company’s securities before knowledge about potential cybersecurity risks becomes public.
• The U.S. Food and Drug Administration published a final rule amending its regulations on acceptance of data from clinical investigations for medical devices conducted outside the United States. The final rule requires investigations to be conducted in accordance with “good clinical practice,” including using an independent ethics committee and obtaining and documenting the “freely given informed consent” of subjects.
• Legislators in Alaska introduced bills that would require Medicaid recipients to work in order to receive their Medicaid benefits. Alaska Senate President Pete Kelly (R) reportedly said that these proposed work requirements should be seen as a “privilege.” Last month, the U.S. Department of Health and Human Services issued guidance allowing states to implement these work requirements.

WHAT WE’RE READING THIS WEEK

• In a forthcoming paper for the symposium edition of the Notre Dame Law Review, Jon D. Michaels of the University of California, Los Angeles School of Law examined the concept of the “deep state.” Michaels argued that the American bureaucratic system is “demographically diverse, highly accountable” system that “quite possibly safeguards our constitutional commitments and enriches public policies.”
• In a paper for the Pemsel Case Foundation, Natalie Silver, a professor at the University of Sydney Law School in Australia, analyzed the approaches of the United States, Australia, the United Kingdom, and Canada used to regulate the foreign activities of charities. Silver intended for this comparative perspective to inform the “development of law and policy” of governments looking to reform their regulation of charities overseas.
• In a working paper draft, Quinn Curtis of the University of Virginia School of Law examined the Labor Department’s Obama-era fiduciary rule. The rule, published in 2016, imposed fiduciary duties on more people, such as those being paid to give retirement investment advice. Curtis asserted that even though the rule “is a well-intentioned and plausible means to confront the well-documented problem of investment advice, it promises only modest benefits.”