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.

FTC Diverges from the Consumer-Welfare Standard in Bid to Block Microsoft-Activision Deal

Rachel Chiu

Rivalry is a necessary feature of market competition, and transactions that enable companies to compete on par with dominant players and expand into new products have net benefits for consumers. Antitrust enforcers should stick to the consumer-welfare standard, rather than seeking to micromanage the economy.

A Falling Tide Reveals A Lot Of Things

J. Kennerly Davis, Jr.

If we can realign our political debates and policy analyses to focus on the flaws and failures of the progressive model of regulation, we will be much better prepared when the tide goes out the next time.

Nine Agencies Propose Regulations for Partnerships with Faith-Based and Neighborhood Organizations

On January 13, 2023, nine agencies issued a notice of proposed rulemaking (NPRM) titled “Partnerships With Faith-Based and Neighborhood Organizations” to “clarify protections for beneficiaries and potential beneficiaries receiving federally funded social services and the rights and obligations of organizations providing such services.”

Partisan Enforcement and Increasing Uncertainty at the FTC: Commissioner Wilson’s Departure and Recent FTC Administrative Actions

Elyse Dorsey

The Federal Trade Commission has amped up its administrative activity of late, portending changes in enforcement to come.

Education Department Proposes Rescinding Religious Student Group Protections and Requests Info on Campus Free Speech Regulations

Rachel Morrison

On February 22, 2023, the Department of Education (ED) published in the Federal Register a notice of proposed rulemaking (NPRM) and a request for information (RFI) relating to First Amendment religious exercise and free speech regulations for institutions of higher education.

HHS Proposes Rule Modifying Healthcare Conscience Regulations

Rachel Morrison

On January 5, 2023, the U.S. Department of Health and Human Services (HHS) issued a notice of proposed rulemaking (NPRM) titled “Safeguarding the Rights of Conscience as Protected by Federal Statutes.” The 11-page NPRM is open for public comment for 60 days until Monday, March 6.

Supreme Court to Hear Two Challenges to President Biden’s Student Loan Forgiveness Program

Karen Harned

In December, the Supreme Court granted certiorari in two cases challenging the student loan forgiveness program that President Biden announced in August of last year. Biden v. Nebraska was brought by six states: Arkansas, Iowa, Kansas, Missouri, Nebraska, and South Carolina. Department of Education v. Brown was brought by two individuals with student loans.