Top Regulatory Stories of 2018

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The Regulatory Review highlights the top regulatory stories written by our staff in 2018.

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The Regulatory Review is pleased to highlight the top fifty pieces of 2018 authored by its staff contributors. These essays, which qualify for this list based on the number of page views, are arranged below in alphabetical order by last name of author.

Regulating the Antibiotic Resistance Crisis

June 12, 2018 | Benjamin Barsky

Recent California legislation has the potential to tackle the growing antibiotic resistance crisis. But to do so, the California state government needs to invest sizable resources in fine-tuning the law’s data collection mechanisms and also make sure it does not conflict with federal law, according to Emilie Aguirre, a doctoral student at Harvard Business School.

Improving Federal Regulation of Medical Algorithms

July 4, 2018 | Benjamin Barsky

To manage the demands of emergency cases, physicians today complement their medical skill-set with a new tool: algorithms. Nicholson Price, a professor at University of Michigan Law School, argues that federal regulatory reforms must occur to unleash the full lifesaving potential of algorithms in health care and proposes three complementary approaches.

How to Regulate During a Financial Crisis

June 21, 2018 | Nicholas Bellos

Congress and federal regulators will someday face another financial crisis. Yale Law School Professor Roberta Romano argues that, when the next economic downturn hits, the nation will need new procedural requirements to ensure the most decisive yet flexible regulatory response.

The Changing Meaning of Transparency

August 15, 2018 | Nicholas Bellos

Progressives have long believed that shining a light into the shadows of businesses’ operations would expose misconduct and limit corporations’ influence in government. Yet, according to Columbia Law School Professor David Pozen, modern advocates for transparency now pursue a more libertarian, skeptical bent that aims to make government not more democratic and functional but smaller and less effective.

How Regulators Can Excel

January 17, 2018 | Sara Bodnar

As regulators began to face growing scrutiny in the new Trump Administration, the Penn Program on Regulation convened a panel discussion around the book Achieving Regulatory Excellence. The panel emphasized the importance of empathetic engagement with members of the public. Panel members also discussed how regulators must prepare for the high-stakes decision-making that top-quality regulation demands.

What Makes Achieving Regulatory Excellence So Difficult

January 2, 2018 | Justin S. Daniel

Cary Coglianese, a professor at the University of Pennsylvania Law School and the director of the Penn Program on Regulation, explains in his introduction to Achieving Regulatory Excellence that regulators face varied and competing pressures, high public expectations, a need to maintain effective relationships with industry, and often unclear guidance from legislators.

Executive Power and the CFPB

April 10, 2018 | Justin S. Daniel

In a recent decision, the U.S. Court of Appeals for the D.C. Circuit considered the constitutionality of Congress’s decision to insulate the Consumer Financial Protection Bureau director from presidential influence by allowing removal only in cases of “inefficiency, neglect of duty, or malfeasance in office.” The court held that “for-cause” removal protection for the director comports with the Constitution.

Presidential Authority and the Antiquities Act

May 15, 2018 | Justin S. Daniel

President Barack Obama designated as national monuments more than 1.5 million acres of federal land in southeastern Utah and Nevada. After assuming office, President Donald J. Trump issued an executive order announcing he would consider rescinding these designations—and he did in fact later rescind them for some tracts of land. But legal scholars disagree about whether the President can “revoke a monument designated by his predecessor” under the Antiquities Act.

Doctors or Devices?

May 30, 2018 | Griffin Davis

Artificial intelligence can lower medical costs and increase access to care. Still, these technologies carry some risk. Should those risks be regulated more like those from medical devices or doctors? In a recent paper, Professor Jane Bambauer of the University of Arizona James E. Rogers College of Law suggests that regulators should consider treating AI much like they treat human professionals.

Invoking a Right to Try in Regenerative Medicine

October 24, 2018 | Marissa Fritz

The Right to Try Act of 2017 allows anyone who has been diagnosed with a life-threatening disease and has exhausted all treatment options to access a treatment that has completed just the first phase of testing required. Although advocates for terminally ill patients favor the new law, three legal scholars have recently cautioned against its use.

For Smokers Trying to Quit, Information Could Be Key

April 4, 2018 | Kelly Funderburk

With cigarette use continuing to be the leading cause of preventable death in the United States, exchanging cigarettes for e-cigarettes could go a long way toward reversing this fatal trend. But Jonathan H. Adler, a professor at Case Western University School of Law, argues that the U.S. Food and Drug Administration’s (FDA) regulations keep smokers from learning about e-cigarettes’ harm-reducing potential.

The Internet Can Survive Without Net Neutrality

May 9, 2018 | Kelly Funderburk

When the Federal Communications Commission (FCC) vacated its Open Internet Order, net neutrality advocates warned that the decision would diminish the value of the Internet. But in a recent paper, A. Douglas Melamed and Andrew W. Chang compare the net neutrality and antitrust approaches to Internet governance and argue that net neutrality might not be necessary to preserve the Internet’s value after all.

Can OSHA Regulation Rescue NFL Players?

November 21, 2018 | Grace Gale

Football players risk their lives in the name of entertainment. With recent research showing the life-altering impacts of game-related concussions, should the federal government step in to regulate the sport? According to a recent article, the answer is “yes.”

The Brave New World of Bitcoin

February 1, 2018 | Alex Kang

The explosion in the value and usage of Bitcoin has brought the virtual product to the attention of regulators around the world—most recently to those in South Korea. The South Korean government reportedly announced that it will begin regulating cryptocurrencies like Bitcoin through a ban on anonymous cryptocurrency trading.

A Farewell to Fracking Regulations

February 7, 2018 | Alex Kang

The debate over hydraulic fracturing, also known as “fracking,” has a long and heated history, leaving industry and environmental activists at loggerheads. The Trump Administration stoked the debate even further, as the Bureau of Land Management took the final steps to halt an Obama-era fracking regulation.

What the FDA Can Teach Us About Regulatory Excellence

January 16, 2018 | Jennifer Ko

In his chapter of the book, Achieving Regulatory Excellence, David Vogel, a professor at the University of California, Berkeley, examines regulatory responses to issues of public health, safety, and the environment, including pharmaceutical regulation. From these examples, Vogel distills principles for successful regulation—in particular, the ability to respond to new information and to recognize the accomplishments and shortcomings of previous decisions.

Federal Court Orders EPA to Revisit Lead Risks

May 10, 2018 | Jennifer Ko

Decades after the U.S. Consumer Product Safety Commission ordered the removal of lead from house paint, young children continue to be exposed to lead that remains in homes built before the ban. A federal court recently ordered the U.S. Environmental Protection Agency (EPA) to issue a proposed rule that includes revised hazard standards for household dust that contains lead and a modified definition of lead-based paint.

Executive Orders and the Limits of Presidential Authority

May 31, 2018 | Jennifer Ko

Against the backdrop of protests at airports and extensive news coverage of the travel ban, Judge James L. Robart issued the first nationwide order blocking enforcement of the Trump Administration’s original ban. Speaking at the University of Pennsylvania Law School, Judge Robart discussed the legal issues in the case and offered his perspective on the legality of such executive action.

Nuclear Energy at the Forefront of States’ Clean Energy Policies

August 16, 2018 | Jennifer Ko 

Industry has challenged state programs in New York and Illinois that reward nuclear power plants for their ability to generate electricity without producing any greenhouse gas emissions. In a recent paper, Ari Peskoe, a fellow at Harvard Law School, argues that courts reviewing these challenges should find that New York and Ilinois’s programs do not conflict with federal law.

Addressing the Dangers of Partially Driverless Cars

February 6, 2018 | Jane Komsky

Cars with features that allow a carefully monitoring driver to remove both hands from the steering wheel and foot from the pedal—known as partially driverless cars—are already on the road. But according to Tracy Hresko Pearl, a professor at Texas Tech University School of Law, the National Highway Traffic Safety Administration is doing little to address existing partially driverless cars.

Taking a Gamble on Casino Regulation

June 13, 2018 | Danielle Lazarus

Casinos are often synonymous with vice and portrayed as windowless and well-lit, providing patrons with the illusion of timelessness by banning clocks and allowing unlimited turns. In a recent paper, University of Chicago’s Jim Leitzel argues that states should develop rules that call for casinos to “nudge” irrational gamblers into more socially desirable behavior.

Tightening Service and Emotional Support Animal Regulations

March 22, 2018 | Patricia Liverpool 

In a recent paper, Loyola Law School Professor Sande Buhai argues that laws regulating service and support animals are complicated and incoherent. To reduce the exploitation of these regulations, Buhai proposes several solutions, including a certification program for all service and emotional support animals, along with criminal penalties for abuse of these regulations. But other scholars contend that more stringent requirements would be inappropriate.

Allowing Students to Access Sunscreen Without Restriction

May 23, 2018 | Patricia Liverpool

Each summer, parents slather sunscreen on their children to minimize sun damage. But during the school year, many children cannot use sunscreen without a doctor’s note. FDA considers sunscreen an over-the-counter drug, which has led many schools to limit student access to sunscreen. Today, legislatures across the nation are reconsidering this restriction.

Waiving Credit Freeze Fees

June 5, 2018 | Patricia Liverpool

To protect consumers from identity theft after personal information has been exposed, the government recommends that consumers place a security freeze on their credit reports. But in over 40 states, credit reporting agencies charge fees to do so. That will soon change because President Trump recently signed legislation that will prohibit credit reporting agencies from charging fees for security freezes requested by customers.

Enforcing the Fair Credit Reporting Act Through Private Actors

July 3, 2018 | Patricia Liverpool 

Under the Fair Credit Reporting Act, parties that provide information to credit reporting agencies must ensure that the information is accurate. Consumers, however, are barred from enforcing this provision. Alexandra P. Everhart Sickler, a professor at the University of North Dakota School of Law, proposes that the U.S. Congress create and structure a private right of action to increase accurate reporting by information providers.

Regulating Sober Living Homes

August 20, 2018 | Patricia Liverpool

Individuals addicted to drugs too often find themselves locked into a relapse cycle in which operators of sober living homes fail to provide meaningful treatment and instead focus on billing insurance programs excessively and unethically. To combat pervasive insurance fraud, public officials are increasingly calling for greater regulation and oversight of sober homes.

Regulating by Way of Straws

April 5, 2018 | Sarah Madigan

Americans each day use 500 million plastic straws, according to some estimates. In mid-January, California Assembly Member Ian Calderon introduced a bill in the California State Assembly that would prevent dine-in restaurants from supplying patrons with plastic straws unless they ask, but Calderon’s bill has faced some resistance from the general public.

Getting Railroads to Regulate Sleep Disorders

July 5, 2018 | Sarah Madigan

After investigating two railroad accidents in New York in recent years, the National Transportation Safety Board concluded that both trains’ engineers suffered from fatigue due to undiagnosed severe obstructive sleep apnea. The Federal Railroad Administration initiated a rulemaking procedure in 2016 to institute mandatory sleep apnea screenings for train operators, but the Trump Administration withdrew the rulemaking last year. NTSB Chairman Robert L. Sumwalt reportedly expressed that he was “mystified” by the Department’s withdrawal.

Philadelphia’s Fight Over Pay History

March 19, 2018 | Samuel Moran

 Citing gender- and race-based wage gaps, the Philadelphia City Council last year passed a wage equity ordinance prohibiting employers from asking about or requiring disclosure of a job applicant’s pay history. Not all responses from the private sector have been friendly, and the Chamber of Commerce for Greater Philadelphia has brought suit in federal court.

Could You Lose Your Voter Registration for Not Voting?

April 19, 2018 | Samuel Moran

On Election Day 2016, some Ohio residents learned that because they had chosen not to vote in the last few elections their names had been removed from the list of registered voters. But was this an acceptable reason to remove them from their state’s voter registry? The U.S. Supreme Court heard arguments earlier this term in a case that will decide that question.

Preventing the Sharing Economy From Abusing Your Data

August 1, 2018 | Samuel Moran

Sharing economy firms have exclusive and limitless access to consumer data and they can tailor their software applications to take advantage of that. A recent paper by Ryan Calo and Alex Rosenblat highlights the potential for firms like Uber or Lyft to abuse this consumer data, and they argue that consumer protection laws present the right framework for solving this kind of data abuse.

EPA Moves to Scale Back Methane Rules

October 5, 2018 | Samuel Moran

President Trump—who applauded the energy industry for surviving the last “eight years of hell”—has been following through on his promise to scale back environmental regulations. In September 2018, EPA proposed changes to Obama-era methane regulations, seeking to reduce regulatory burdens and harmonize federal and state requirements.

With Liberty, Justice, and Money for All

October 16, 2018 | Samuel Moran

Vanderbilt University Law School Professor Morgan Ricks adopts the view that banks are, in effect, an extension of the federal government. He argues in a recent paper that banks’ money creation is “an intrinsically public activity” and, as a result, banks should be regulated like other critical public infrastructure in the energy, communication, and transportation sectors.

Who Gets to Define the Crime?

December 10, 2018 | Domenic Powell

In a case before the U.S. Supreme Court, Herman Gundy is arguing that the power of the Attorney General to decide whether the Sex Offender Notification and Registration Act (SORNA) applies to people like him—who were convicted of a sex offense before SORNA was enacted—violates the nondelegation doctrine. If the Supreme Court revives the nondelegation doctrine in the case, it could have an effect far beyond sex offender registration.

Addressing the International Legal Challenges of Genetic Engineering

April 2, 2018 | Erin Quick

New gene editing technology raises serious ethical concerns. In a recent keynote at the University of Pennsylvania Law School, legal scholar Gary Marchant of the University of Arizona James E. Rogers College of Law argued that the international community can respond to these ethical concerns by taking steps to unify the regulation of genetic engineering through multilateral treaties, soft law, and transnational dialogue.

Herbicide Regulators Differ on Whether to Ban Dicamba

May 28, 2018 | Erin Quick

Chemicals that kill weeds—herbicides—serve as an important tool for weed control. The state of Arkansas, however, has banned the use of one herbicide—dicamba—during the upcoming growing season after it reportedly damaged millions of acres of crops last summer. EPA has also taken steps to prevent a repeat of the damage, but it did not go so far as to ban the herbicide.

Gene Editing of Human Embryos Prompts Calls for Regulation

August 14, 2018 | Erin Quick

Scientists now have the ability to manipulate the DNA of human embryos in ways that could allow them to eliminate genetic diseases from a child’s genes before birth. In a recent paper, Penn State Law Professor Eileen Kane argues that important ethical questions unique to germline editing require answers, but she suggests that these are not novel questions if gene editing is viewed as a new technique that constitutes a step in the current direction of effective genetic engineering.

Will New Jersey Change Sports Betting Regulation in the United States?

February 8, 2018 | Stefanie Ramirez

Most gamblers in the United States resort to placing illegal best on sporting events. But Brad R. Humphreys, a professor at West Virginia University, predicts that the current patchwork of sports betting regulation may soon change once the U.S. Supreme Court hands down its decision in a case challenging a New Jersey gambling law.

Is the Captive Audience Doctrine the Key to Regulating Harassment?

June 6, 2018 | Stefanie Ramirez

Street and cyber-harassment remain widespread, so why has the law not stepped in? JoAnne Sweeney, a professor at the University of Louisville Brandeis School of Law, argues that a legal concept known as the “captive audience doctrine” is the most viable theory to justify regulating street and cyber-harassment within the bounds of the First Amendment.

Regulating Food Advertising to Children

August 9, 2018 | Stefanie Ramirez

The way companies market their food and beverages to children affects what they eat. In a recent paper, two legal scholars show how food advertising regulations in six countries fail to protect children adequately from excessive promotion of unhealthy foods. They propose an “accountability model” that would enhance advertising regulation’s transparency and accountability.

Voters’ Distrust of Legislators Drives Agency Lawmaking

July 2, 2018 | Patrick Reischl

Congress’s primary task is lawmaking. But given the public’s greater trust in the executive branch, Americans may prefer administrative agencies to handle that job. Jed Stiglitz, a professor at Cornell Law School, argues in a recent paper that legislators’ inability to engender trust in their constituents can explain congressional delegation of lawmaking power to agencies.

New Requirements to Combat Money Laundering

May 22, 2018 | Charlie Rosenthal

Oligarchs, tycoons, and criminals around the world often use shell companies to hide their identities. In an effort to combat money laundering, the Financial Crimes Enforcement Network and the U.S. Department of the Treasury now require financial institutions to gather additional information about the owners of entity clients. The Treasury Department and FinCEN hope to remove the incentive to hide shady behavior behind anonymous corporate ownership.

Negative News for European Union Bank Failure Board

June 11, 2018 | Charlie Rosenthal

One key aspect of the European Union’s (EU) project of creating a unified Europe has been the creation of a banking union. But that banking union continues to struggle, according to a 2017 audit report. The report recommends strengthening the EU banking institution responsible for addressing bank failures throughout Europe.

Proposed Regulation Would Change How Tipped Workers Get Paid

January 1, 2018 | Leigh Anne Schriever

A regulation proposed by the U.S. Department of Labor would affect at least 1.3 million waiters, waitresses, and bartenders in the United States by rolling back an Obama-era regulation that required all tips to be returned to employees. The proposal would repeal this language and allow employers under certain circumstances to pocket the tips earned by employees.

Uber and Lyft Lobby Their Way to Deregulation and Preemption

June 28, 2018 | Leigh Anne Schriever

In only four years, Uber and Lyft have used extraordinary lobbying efforts to convince 41 state legislatures and many local governments to pass legislation protecting rideshare companies from regulation. A recent report cautions that hasty regulations written by the companies and passed by bullied legislators may have significant consequences for both workers and passengers for years to come.

The Rise of Arbitration and the Fall of Employment Claims

July 19, 2018 | Leigh Anne Schriever

Mandatory arbitration agreements now cover an estimated 60 million employees. But in a recent paper, Cynthia Estlund, a professor at New York University School of Law, argues that these provisions are being used by employers to get employees to do what the law forbids them to do: waive their employment rights.

More Permissive Zoning Codes Could Make U.S. Workers Richer

June 14, 2018 | Benjamin Somogyi 

According to a recent paper, relaxing land use regulation in the Bay Area and New York City could increase the average U.S. worker’s income by almost $9,000. Economists Chang-Tai Hsieh and Enrico Moretti argue that U.S. workers are poorer because certain cities use zoning to constrain their housing supply, limiting the number of workers who can share in those cities’ economic success. They also conclude that these exclusionary zoning policies lowered the U.S. gross domestic product.

Why Sacramento Needs to Fix the California Environmental Quality Act

August 8, 2018 | Benjamin Somogyi

With California expected to increase its population by over 10 million by 2050, the state’s housing affordability crisis seems likely to get worse. In a recent paper, attorney Jennifer L. Hernandez places much of the blame on the state’s environmental protection law, the California Environmental Quality Act (CEQA). Hernandez finds that the majority of all lawsuits filed under CEQA between 2013 and 2015 targeted attempts to increase the housing supply in the state’s urban areas.

A Regulator’s Tools for Excellence

January 10, 2018 | Alex Walsh

How do regulators know when they are doing a good job? Better yet, what makes a regulator not just good, but excellent? In their chapter of the book Achieving Regulatory Excellence, Shelley Metzenbaum and Guarav Vasisht argue that the core of regulatory excellence lies in the regulator’s ability to further its mission.

Forcing Regulators to Put Society First

January 8, 2018 | Bryan C. Williamson

In the recent book, Achieving Regulatory Excellence, two former White House regulatory officials argue that excellent regulators need to do better analysis to ensure that each regulation they develop helps society more than it hurts is. John D. Graham and Paul R. Noe urge legislators to require regulators to adopt an outcome-oriented approach to regulatory excellence.

This page is part of a three-part series, entitled The 2018 Regulatory Year in Review.