Online Edition '24

Consecutive

2024

For over half a century, pharmaceutical companies have been shielded under the “learned intermediary doctrine” should their products cause harm to patients. Under the doctrine, physicians are considered learned intermediaries who understand drug risks and counsel their patients accordingly, absolving the manufacturer of the duty to warn patients about potential drug risks and dangers. Contemporary medical and commercial practices have fundamentally changed the roles of both physicians and pharmaceutical manufacturers, such that it’s time for states to discard the learned intermediary doctrine and hold the drug companies themselves accountable for failure to warn.

In 2023, half of senior information technology business executives surveyed worldwide considered artificial intelligence (AI) to be a technology of strategic importance that they would prioritize in 2024. Between 2017 and 2020, funding of AI startups increased from $18 billion to $26 billion. In 2023, seventy-three percent of U.S. companies have begun implementing AI technologies. The growing interest in AI is not limited to corporations.

We own things; things break; and we have them repaired. For a long time, people have been able to freely choose how they have their things fixed—by themselves or by a technician of their choice. However, as more modern essentials begin to involve advanced technologies, consumers find themselves increasingly tethered to the command of manufacturers. By controlling whether and how repair-related tools and information are made accessible, manufacturers can easily make it impossible for consumers or independent repair shops to diagnose and fix problems on their own.

Artificial intelligence (AI) has risen to the forefront of public discourse as the field has rapidly developed over the last decade. Although the definition of AI has not been agreed upon, it can broadly be described as “us[ing] computers to simulate human intelligent behaviors and… train[ing] computers to learn human behaviors such as learning, judgment, and decision-making.” AI has been integrated into our daily lives through Google, Westlaw, social media, ChatGPT, and more. These examples encompass a variety of types of AI about which regulators have become increasingly alarmed.

Since 2019, the U.S. Department of Justice (DOJ) Antitrust Division has ramped up its use of Deferred Prosecution Agreements (DPAs) in criminal antitrust matters. DPAs bypass the traditional plea agreement process. In a DPA, the government defers prosecution for a period of time, provided that a defendant adheres to specific criteria during that period. These pretrial agreements generally involve an admission of wrongdoing, the payment of fines, and the implementation of compliance measures. Charges are dropped if the defendant complies with the requirements of the agreement. After refusing to enter into DPAs for years, the Division’s shift in policy poses novel questions about the future of antitrust enforcement.

Industry standards—often created by private non-profit groups called standards developing organizations or “SDOs”—play a foundational role in modern U.S. industry. A single laptop computer depends on over 250 different standards to operate. These standards can govern areas as diverse as “minimum requirements for product safety, criteria for judging quality, content, environmental sustainability and other product features, uniform metrics for measurement and assessment, and requirements for product interoperability.” In doing so, industry standards provide a variety of benefits to consumers, businesses, and regulatory agencies alike by helping maintain product quality, safety, and convenience.

The second question the petitioner asks in Securities and Exchange Commission v. Jarkesy, a case currently pending before the Supreme Court, is “[w]hether statutory provisions that authorize the SEC to choose to enforce the securities laws through an agency adjudication instead of filing a district court action violate the nondelegation doctrine.” At its simplest, the nondelegation doctrine is a constitutional principle that states that Congress cannot delegate its legislative powers to other entities. Much difficulty has come from attempts to delineate exactly when or how a power is legislative.

The Federal Government uses the tax system to encourage certain behaviors and discourage others. Taxes are not only a way to raise revenue, but also a tool of governance. The Inflation Reduction Act (“IRA”)—the Biden administration’s catchall bill—puts its hand on this lever by allowing taxpayers to sell tax credits which they earn through engaging in renewable energy investments, mostly wind farms or solar fields. Despite its name, the Act has nothing to do with inflation.