Is It Lawful to Use Regulatory Impact Analysis to Achieve Equity?

J. Kennerly Davis, Jr.

Circular A-4, issued by the Office of Management and Budget (OMB), provides detailed guidance to federal agencies regarding the methodological attributes of sound regulatory impact analysis. The Biden administration has proposed modifications to Circular A-4 that were recently peer reviewed in preparation for the finalization and public release of a modified Circular A-4, perhaps by the end of this calendar year.

EEOC Proposes Expansive Pregnant Workers Fairness Act Regulations

Rachel Morrison

On August 7, 2023, the Equal Employment Opportunity Commission (EEOC) issued proposed regulations implementing the Pregnant Workers Fairness Act (PWFA). The Commission is accepting public comment on its proposal until Tuesday, October 10.

The Origins of the 2011 Dear Colleague Letter on Campus Sexual Assault

KC Johnson

Six years ago, I filed a FOIA request for various documents relating to the origin of the Dear Colleague letter, the 2011 Obama administration guidance on Title IX that sought to crack down on campus sexual assault by requiring universities to adjust their procedures to make it more likely that accused students would be found responsible.

Do Title IX Proceedings Count as Legal Processes, or Don’t They?

KC Johnson

The Obama administration’s efforts to use Title IX to pressure universities to crack down on campus sexual assault transformed higher-education law. To date, 512 accused students have filed federal lawsuits (more than 200 have filed suit in state courts), and they’ve enjoyed surprising success—securing favorable rulings from the First, Second, Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuit Courts of Appeal. The specific facts and legal theories vary from case to case. But the core issue remains whether campus procedures that “have been compared unfavorably to those of the infamous English Star Chamber” have sufficient procedural integrity to be reliable.

The Problem with AI Licensing & an “FDA for Algorithms”

Neil Chilson and Adam Thierer

Last year, we released a study for the Federalist Society predicting “The Coming Onslaught of ‘Algorithmic Fairness’ Regulations.” That onslaught has now arrived. Interest in artificial intelligence (AI) and its regulation has exploded at all levels of government, and now some policymakers are floating the idea of licensing powerful AI systems and perhaps creating a new “FDA for algorithms,” complete with a pre-market approval regime for new AI applications. Other proposals are on the table, including transparency mandates requiring government-approved AI impact statements or audits, “nutrition labels” for algorithmic applications, expanded liability for AI developers, and perhaps even a new global regulatory body to oversee AI development.

HHS Proposes Special HIPAA Privacy Rules for “Reproductive Health Care” Information

Rachel Morrison

In accord with the Biden administration’s pro-abortion agenda, the U.S. Department of Health and Human Services issued a notice of proposed rulemaking (NPRM) on April 17, 2023, titled “HIPAA Privacy Rule To Support Reproductive Health Care Privacy.” The NPRM would modify privacy standards under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) for information related to “reproductive health care.”

Implementation of Reagan-Udall’s Recommended Reforms for the Center for Tobacco Products Reforms, A Six Month Status Report

Jeff Stier

About six months ago, the Reagan-Udall Foundation sent the Food and Drug Administration its Operational Evaluation of FDA’s Tobacco Program. this is a report that the FDA itself requested in July of 2022. How is the Center for Tobacco Products (CTP) implementing the recommendations of the report to date?

ED Proposes Title IX Athletics Rule Requiring Participation Based on Gender Identity

Rachel Morrison

On April 13, 2023, the Department of Education (ED) issued a notice of proposed rulemaking (NPRM) titled “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance: Sex-Related Eligibility Criteria for Male and Female Athletic Teams.” This Athletics NPRM would establish a new regulatory standard under Title IX that would govern sex-related criteria as it relates to gender identity for participation on sex-specific athletics teams at federally funded educational institutions. The 32-day public comment period closes on Monday, May 15.

Developments on Drones, Air Rights, and Takings

Brent Skorup

With the rapid progress of drone technology, legal claims to low-altitude airspace raise novel questions about the application of property law and constitutional protections.

Remembering Marisa Maleck

The Federalist Society notes with great sadness the untimely passing of Marisa Maleck.