Stay ConnectedThe Regulatory Transparency Project is a nonprofit, nonpartisan effort dedicated to fostering discussion and a better understanding of regulatory policies.
On RTP’s Fourth Branch Podcast, leading experts discuss the pros and cons of government regulations and explain how they affect everyday life for Americans.
State Attorneys General have been active in recent years in filing lawsuits against federal agencies. From cases like West Virginia v. EPA to Biden v. Nebraska, state AG lawsuits have prevented significant overreach by federal agencies. In the past year, the Office of the Kansas Attorney General has been one of the most active in this space. Abhishek Kambli and Erin Gaide from the Kansas AG's office discuss the litigation that their office has done this past year. They have filed lawsuits in cases such as Kansas v. Biden (later retitled Alaska v. Department of Education) that challenged the $475 billion student loan forgiveness plan called "SAVE" and Kansas v. Department of Education that challenged the new Title IX regulation that expanded the definition of sex to include gender identity. Abhishek Kambli and Erin Gaide discuss these and other cases in depth to provide a window into this unique type of litigation.
Featuring:
Abhishek Kambli, Deputy Attorney General, Kansas Office of the Attorney General
Erin Gaide, Assistant Attorney General, Kansas Office of the Attorney General
Axon and Jarkesy have renewed scrutiny of the constitutionality and fairness of FTC’s administrative litigation. For example, the President cannot remove Administrative Law Judges nor FTC Commissioners, and FTC Commissioners both vote to issue the complaint and decide its merits in proceedings. Parties before the DOJ-Antitrust Division, on the other hand, go directly before an Article III judge, and avoid administrative litigation altogether.
This panel, featuring the former FTC Acting Chairman, Commission advisors, and administrative law experts, discussed these and other constitutional challenges to FTC’s administrative litigation. If the courts ultimately uphold constitutionality, is Congressional reform warranted? Should FTC’s administrative tribunal be abolished altogether? Or are internal process reforms sufficient to afford fairer process?
Keith Klovers' article, "Three Options for Reforming Part 3 Administrative Litigation at the Federal Trade Commission," as referenced in the discussion.
In this episode, Randel K. Johnson and Andrew Kilberg discuss the often ephemeral nature of the Rule of Law in immigration and other enforcement proceedings, with a particular focus on the challenges faced by small businesses when confronted with a heavy-handed bureaucracy and the practical difficulties of obtaining judicial review. The experts also examine the Equal Access to Justice Act (EAJA), considering potential legislative reforms to improve the ability of small entities to vindicate their rights before agencies and the courts while improving enforcement and maintaining accountability in regulatory matters.
Featuring:
Randel Keith Johnson, Immigration Academic Fellow, Cornell Law School
Andrew Kilberg, Partner, Gibson Dunn
In this episode, financial experts look back on recent SEC regulation, enforcement, and litigation, as well as their predictions for the next SEC leadership under a second Trump administration.
C. Wallace DeWitt, Securities lawyer
Brian Knight, Director of Innovation and Governance and Senior Research Fellow, Mercatus Center at George Mason University
Jennifer Schulp, Director of Financial Regulation Studies, Cato Institute’s Center for Monetary and Financial Alternatives
Antitrust efforts have become prevalent in the courts and legislative bodies, both in the United States and abroad. A recent example is the U.S. Department of Justice's case against Google for alleged anticompetitive behavior in its search business. Though cybersecurity and national security concerns are traditionally not included in antitrust efforts, the implications of such priorities should be carefully considered. Join a panel of leading security and antitrust experts for a discussion on recent antitrust actions, how security is directly and indirectly implicated, and considerations for the future.
J. Kennerly Davis presents an overview of electric industry regulation. Davis discusses how regulation has changed in a fundamental way over the last 140 years, and what that change has meant for electric customers large and small.
The Regulatory Transparency Project and the Federalism & Separation of Powers practice group hosted a virtual debate over the recent Supreme Court decision in SEC v. Jarkesy. The panel featured Matthew Wiener, from Penn Carey Law, and Josh Robbins, of the Pacific Legal Foundation. Michael Buschbacher, from Boyden & Gray PLLC, moderated the debate.
Tanner Jones and Jonathan Wolfson from the Cicero Institute discuss their co-authored paper titled "Restoring Legislative Authority: A Balanced Approach to Agency Deference." They explore the implications of the Chevron deference decision and the Loper Bright case. The conversation addresses the impact of these decisions on administrative law, regulation, and specifically on the states.
A panel of experts will engage in a legal discussion about the implications of using AI in rulemaking, as AI technologies inadvertently influence the process of creating and implementing regulations. The panel will also consider how rulemaking and AI influence the legal and political realms.
Featuring:
Speakers:
Catherine Sharkey, Segal Family Professor of Regulatory Law and Policy, New York University School of Law
John Nay, Founder & CEO, Norm Ai
J. Kennerly Davis, Former Senior Attorney, Hunton Andrews Kurth LLP
(Moderator) Daniel Flores, Senior Counsel, Committee on Oversight and Accountability, U.S. House of Representatives
This virtual event explored the potential trajectories of AI policy under the upcoming shift in presidential administrations. Our expert panel, featuring Ash Kazaryan, Adam Kovacevich, and Neil Chilson, examined the critical issues surrounding AI and offered insights on what policymakers need to know as they navigate rapidly evolving AI technologies. This discussion, moderated by Adam Thierer, provides a balanced range of perspectives on how future administrations can effectively approach AI governance.
A panel of distinguished legal scholars and practitioners will provide an overview of the current landscape of litigation surrounding climate disclosure regulations. Experts will discuss the legal challenges facing both the SEC’s climate disclosure rule and California’s SB 253 and 261. Panelists will address the legal questions raised during litigation over climate disclosure regimes, as well as the regimes’ implications for corporate governance, consumers, and investors.
Featuring:
Victor B. Flatt, Coleman P. Burke Chair in Environmental Law, School of Law, Case Western Reserve University
Stephen W. Hall, Legal Director and Securities Specialist, Better Markets
Trent McCotter, Partner, Boyden Gray PLLC
[Moderator] Marc Marie, Policy Fellow, Regulatory Policy, Americans for Prosperity
In this episode, Ketan Bhirud and Luke Wake take a closer look at the role of the use of outside legal counsel by state attorneys general. Outside counsel can provide valuable expertise and resources, but what are the implications of relying on external firms for state legal matters? What are the advantages and potential pitfalls of these partnerships? How might they shape state legal practice and ultimately impact the public?
In this episode, experts GianCarlo Canaparo and Mike Gonzalez provide a legal and historical interpretation of the term "equity." This discussion, moderated by Linda Chavez, highlights how the definition of equity extends beyond civil rights protection and how the evolving definition of the term "equity" affects the legal realm.
Featuring:
GianCarlo Canaparo, Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation
Mike Gonzalez, Angeles T. Arredondo E Pluribus Unum Senior Fellow, Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy, The Heritage Foundation
(Moderator) Linda Chavez, Chairman, Center for Equal Opportunity
Regulatory experts, Rosario Palmieri and Karen Harned, discuss industry self-regulation, soft law, and voluntary standards. Thousands of products, services, and systems use voluntary, consensus standards to govern product performance and safety, worker safety, financial services, and food safety. This is a layer of self-regulation that usually lies beneath the administrative state or in parts of the economy where private markets have developed mechanisms to ensure that businesses and consumers' expectations are met in exchanges. Emerging technologies and industries are often first governed by these types of private standards by voluntary agreement. Federal agencies, when deciding to regulate, are required to first rely on industry-created voluntary consensus standards whenever possible. The discussion includes understanding the costs and benefits of relying on private, often copyrighted, standards as a source of law that is incorporated by reference into the U.S. Code and Code of Federal Regulations.
Featuring:
Karen Harned, President, Harned Strategies LLC
Rosario Palmieri, Partner, Lewis Brisbois
Federal regulators were busy in April 2024, with agencies publishing a record-breaking 66 significant new regulations; more than half of which had price tags higher than $200 million. This burst of regulatory activity can be attributed to a once obscure law known as the Congressional Review Act (CRA). If the November election brings Republican control of the White House and Congress, rules issued this summer or fall may be subject to review and disapproval in 2025. This panel will review how both parties have used the CRA to signal displeasure with a president’s policies and to overturn regulations. It will also explore Congress’s options under the Act.
Featuring:
Steven Balla, Associate Professor of Political Science, Public Policy and Public Administration, and International Affairs, George Washington University
Todd F. Gaziano, President, Center for Individual Rights
Anthony Papian, Staff Director at United States Senate, Subcommittee on Government Operations and Border Management
Susan Dudley, Founder, GW Regulatory Studies Center & Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, George Washington University
Experts will examine the major questions doctrine, its role in regulatory litigation, and its place in administrative law in light of recent developments.
Please register and join us for a live webinar on August 14, 2024 at 11 am EST.
Featuring:
Paul Ray, Director, Thomas A. Roe Institute for Economic Policy Studies, The Heritage Foundation
Elliot Gaiser, Ohio Solicitor General
(Moderator) Susan Dudley, Founder, GW Regulatory Studies Center & Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, George Washington University
Kathryn Ciano Mauler and Eric Wang join the podcast to discuss the FEC rules behind campaign funds, particularly in the transfer of said funds between candidates. Their discussion breaks down the questions surrounding the recent changes to the 2024 ballot, and how that will affect each campaign's fundraising efforts, especially in a post-Chevron legal landscape.
Alex J. Adams, Director of Idaho's Department of Health and Welfare is joined by Reeve T. Bull, Director of the Virginia Office of Regulatory Management. Director Adams and Director Bull detail the importance of regulatory reform efforts in Idaho and Virginia, respectively, and discuss the impact that regulatory reform can have on employment opportunities, business development, and the cost of living. What is zero-based regulation ("ZBR")?
What did Idaho's zero-based regulation executive order do? What has been the impact of Idaho's use of incorporation of regulation into law? What is cost-benefit analysis? How did Virginia's Executive Order 19 use cost-benefit analysis for regulatory reform? Why did Virginia's Office of Regulatory Management apply cost-benefit analysis to regulations and guidance documents?
Legal experts Jonathan Butcher and Jon Riches discuss the debate between parental rights and children’s privacy in education under the Family Educational Rights and Privacy Act (“FERPA”). Moderated by Luke Wake, their discussion examines the debates over the role of student privacy, parental rights, and the role that the government is playing in education.
On July 2, 2024, the US Supreme Court granted certiorari in the case, Food and Drug Administration v. Wages and White Lion Investments, LLC. In Explainer Episode 70, expert Jeff Stier discusses the FDA's regulatory action prohibiting specific vape flavors from being sold by these two companies, and the legal issues that the Supreme Court will review in the October 2024 term. What are the implications of the FDA prohibiting the sale of these vape flavors? What regulatory process did the FDA use to make this determination? Why did the FDA decide to allow certain vape flavors, and not others? What are the effects on the FDA's decision in this case on smokers? In promoting public health? On consumers? On the companies?
The panelists will discuss Biden Administration policies and regulations at the DOL and SEC addressing investing based on environmental, social, and governance (or “ESG”) factors; whether they are consistent with statutory law; and whether the agencies followed appropriate administrative processes in promulgating these ever-evolving policies.
Moderator:
Gregory Jacob, Partner, O'Melveny & Myers LLP
Speakers:
Paul Atkins, Chief Executive Officer, Patomak Global Partners LLC
Elliot Gaiser, Associate, Boyden Gray & Associates PLLC
Sharon Rose, Partner, Berliner Corcoran & Rowe LLP
In this episode of the Fourth Branch Explainer podcast, Prof. Eugene Volokh, from UCLA Law School, and Prof. David Bernstein, from the Antonin Scalia Law School, discuss the features, implications, and possibilities of the Anti-Semitism Awareness Act.
The Regulatory Transparency Project’s Fourth Branch Podcast presents Explainer Episode 68.
In this Fourth Branch Explainer podcast, Rachel N. Morrison from the Ethics and Public Policy Center (EPPC) discusses the implications of the Pregnant Workers Fairness Act Regulations recently released. Listen in as Morrison discusses the pros and cons of new rules.
Congress has been working on comprehensive federal data privacy legislation for decades without reaching agreement. But the finish line may be closer today than before. With the recent introduction of the American’s Privacy Rights Act (APRA), the chairs of the Senate and House Commerce Committees announced a bipartisan compromise, hoping to end the legislative stalemate.
Our panel of data privacy experts will take a deeper look at APRA, including its provisions and implications. Who wins and who loses in APRA’s mix of provisions from preemption to enforcement? Is the decision to embrace regulation of algorithmic decision-making a deal maker or breaker? And does it stand a chance of passing in an election year? Tune in to hear our panelists explore the ongoing dynamic of federal privacy legislation in the United States.
Register and Join the webinar on May 23rd at 3 pm EST.
The Regulatory Transparency Project’s Fourth Branch Podcast presents Explainer Episode 67.
In this Fourth Branch Explainer podcast, health policy experts Michael Cannon and Christina Sandefur discuss the regulatory landscape of veterans’ benefits, and how veterans’ healthcare impacts American foreign policy.
The experts discuss Michael Cannon’s new book “Recovery”.
Earlier this year, the U.S. Energy Information Administration reported that the nation’s Strategic Petroleum Reserve, or SPR, held approximately 358 million barrels, its lowest level in forty years. Is that a problem? What is the SPR and how is it supposed to operate? How much petroleum is it supposed to hold?
Listen in on the Regulatory Transparency Project's Explainer Episode 66, as expert J. Kennerly Davis discusses SPR.
In this RTP explainer episode 65, we are joined by Michael Cannon, Director of Health Policy Studies at the Cato Institute, and Christina Sandefur, Executive Vice President of the Goldwater Institute to discuss Michael Cannon’s new book, Recovery.
Listen in as these experts consider the role of government agencies like the FDA in health spaces across America. "Recovery" discusses treatments approved by the FDA and the implications of approved drugs entering the market. Americans are inadvertently affected by the decisions of government agencies. With this said, "Recovery" argues the FDA takes away people’s rights to make their own health decisions. Does the FDA prohibit safe and effective drugs from entering the market? In this episode, experts discuss the implications of the decisions made by the FDA and the consequences of unsafe access to drugs.
Copies of Michael Cannon’s book can be found at, https://www.cato.org/books/rec...
Murthy v. Missouri, originally filed as Missouri v. Biden, concerns whether federal government officials had violated the First Amendment by "coercing" or "significantly encouraging" social media companies to remove or demote particular content from their platforms.
Multiple individuals, advocacy groups, academics, and some states sued various officials and federal agencies for censoring conservative-leaning speech on the 2020 election, COVID policies, and election integrity. The plaintiffs argued the officials and federal agencies used "jawboning" tactics to force social media companies to suppress content in a manner that violated the plaintiffs' freedom of speech. The U.S. District Court for the Western District of Louisiana issued a preliminary injunction in the case, which was then vacated in part by the Fifth Circuit, which nonetheless held that there had been some violations of the plaintiffs' First Amendment rights. The U.S. Supreme Court then granted an emergency stay order and oral argument is set for March 18, 2024.
Join us as we break down and analyze how oral argument went the same day.
Featuring:
Prof. Adam Candeub, Professor of Law & Director of the Intellectual Property, Information & Communications Law Program, Michigan State University College of Law
Dr. Matthew Seligman, Partner, Stris & Maher LLP & Fellow, Constitutional Law Center, Stanford Law School
(Moderator) Stewart A. Baker, Partner, Steptoe & Johnson LLP
In this episode, Jon Riches and James Sherk discuss fundamental questions related to government labor unions and their impact on public policy. They explore the nuances between public and private unions, their influence on public policy, and the concept of release time – its definition, prevalence across federal, state, and local levels, funding sources, legality, and potential policy remedies. Join us as we navigate through these critical questions and discuss real-world examples, including insights into official time at the federal level.
Featuring:
Jonathan Riches, Director of National Litigation, Goldwater Institute
James Sherk, Director, Center for American Freedom, America First Policy Institute
On February 20, 2024, the U.S. Supreme Court will hear oral argument in Corner Post, Inc. v. Board of Governors of the Federal Reserve System. The case asks whether a plaintiff’s Administrative Procedure Act (APA) claim “first accrues” under 28 U.S.C. § 2401(a)—the six-year default federal statute of limitations—when an agency issues a rule or when the rule first causes a plaintiff to “suffer legal wrong” or “be adversely affected or aggrieved,” 5 U.S.C. § 702.
Petitioner Corner Post is a North Dakota convenience store and truck stop that seeks to challenge a 2011 Federal Reserve rule governing certain fees for debit card transactions. Corner Post didn’t open its doors until 2018 but the lower courts in this case held that its challenge is time barred because the statute of limitations ran in 2017—before Corner Post accepted its first debit card payment.
On February 20, 2024, the U.S. Supreme Court will hear oral argument in Corner Post, Inc. v. Board of Governors of the Federal Reserve System. The case asks whether a plaintiff’s Administrative Procedure Act (APA) claim “first accrues” under 28 U.S.C. § 2401(a)—the six-year default federal statute of limitations—when an agency issues a rule or when the rule first causes a plaintiff to “suffer legal wrong” or “be adversely affected or aggrieved,” 5 U.S.C. § 702.
Petitioner Corner Post is a North Dakota convenience store and truck stop that seeks to challenge a 2011 Federal Reserve rule governing certain fees for debit card transactions. Corner Post didn’t open its doors until 2018 but the lower courts in this case held that its challenge is time barred because the statute of limitations ran in 2017—before Corner Post accepted its first debit card payment.
Please join us as we discuss the case and how oral argument went before the Court.
Featuring:
Michael Buschbacher, Partner, Boyden Gray PLLC
John Kendrick, Associate, Covington
Susan C. Morse, Angus G. Wynne, Sr. Professor in Civil Jurisprudence and Associate Dean for Academic Affairs, The University of Texas at Austin School of Law
Molly Nixon, Attorney, Separation of Powers, Pacific Legal Foundation
Moderator: John F. Duffy, Samuel H. McCoy II Professor of Law, University of Virginia School of Law
The 2024 super election year has captured the world's attention, with the US elections playing a central role in shaping global politics. Join Kathryn Ciano Mauler and Katie Harbath as they delve into the complexities of worldwide political elections while discussing how to counteract and recognize how these elections will intersect with emerging technologies like AI.
Featuring:
Kathryn Ciano Mauler, Corporate Counsel, Google
Katie Harbath, Chief Global Affairs Officer, Duco
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
For many years FDA has claimed the authority to regulate Laboratory Developed Tests, that is tests that are designed, produced, and used in a single lab – never being put up for sale. This authority, however, has been contested, and the FDA itself has traditionally practiced “discretionary enforcement,” wherein it has regulated LDTs very little. A change occurred in October 2023 when the FDA issued a notice of proposed rulemaking wherein it indicated its intention to codify its claim of authority and begin enforcing oversight of LDTs. Dr. Joel Zinberg, M.D., J.D., joined us to discuss the history the FDA’s regulation of LDTs, the proposed rule, and what the ramifications may be.
Featuring:
Dr. Joel Zinberg, Senior Fellow, Competitive Enterprise Institute
The approach the FDA has taken to regulating e-cigarettes and vape products, particularly those that are flavored, has been the topic of conversation for some years. Experts debate the best methods for review, risks and benefits involved in such products, and the means by which the FDA reviews such applications. Jeff Stier joined us to discuss a recent Fifth Circuit decision (Wages and White Lion Investments, L.L.C., doing business as Triton Distribution v. FDA) concerning the FDA's approval (or lack thereof) of flavored cartridge e-cigarettes --the state of the flavored e-cigarette market, the facts of this case, the existing circuit split, and the potential ramifications of this decision moving forward.
Featuring:
Jeff Stier, Senior Fellow, Consumer Choice Center
What are bias response teams (BRTs)? What role do they play on American college campuses? And how is freedom of speech under the First Amendment involved?
In this Fourth Branch Explainer podcast, experts Jonathan Butcher and Jon Riches briefly explain the intellectual foundations of bias response teams, how these systems operate on American college campuses, and how legal protections such as due process and freedom of speech are involved.
Featuring:
Jonathan Butcher, Will Skillman Fellow in Education, Center for Education Policy, The Heritage Foundation
Jon Riches, Director of National Litigation, Goldwater Institute
This is a podcast version of a live webinar held on December 13, 2023. The webinar was co-sponsored by the Regulatory Transparency Project & the Religious Liberties Practice Group.
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In Bella Health and Wellness v. Weiser, a Colorado faith-based healthcare provider is challenging a recent Colorado law banning a treatment commonly known as abortion pill reversal on the grounds it forced them to violate their religious beliefs. The law, passed in April 2023, makes it illegal for healthcare professionals to offer progesterone (a naturally occurring hormone crucial to a healthy pregnancy) to women who have taken mifepristone as part one in a two-step abortion pill regimen but who subsequently want to maintain their pregnancy. The law imposes significant fines and jeopardizes the medical licenses of those who provide or advertise using progesterone to reverse the effects of an abortion pill.
Bella Health, founded by Catholic mother and daughter nurse practitioners Dede Chism and Abby Sinnett, which has traditionally offered this route of care for women as a part of its life-affirming OB-GYN practice, filed in the U.S. District Court for the District of Colorado for an injunction to stop the law from going into effect. A limited injunction was issued in late April, pending reports by the state's Medical, Nursing, and Pharmacy licensing boards. The last of those regulations were issued in September. The next day, Bella again asked the Court for injunctive relief. In an order issued on October 21, 2023, the district court preliminarily enjoined Colorado from enforcing the law, and the case remains live.
Moderated by Brent Skorup, experts Timothy B. Lee, Professor Pamela Samuelson, and Kristian Stout discuss the emerging legal issues involving artificial intelligence, and its use of works protected under copyright law. Topics include how artificial intelligence uses intellectual property, whether allegations of violations of intellectual property are analogous to prior historical challenges or are novel, and the tradeoffs involved.
Featuring:
This Term, the Supreme Court will hear Loper Bright Enterprises v. Raimondo—a case concerning judicial deference to agency interpretations of ambiguous statutes. Pursuant to Chevron v. NRDC and follow-on cases, courts defer to agency interpretations of ambiguous statutes. Loper Bright offers the Court an opportunity to abandon Chevron deference entirely. But the phrasing of the Question presented in Loper Bright also presents an off-ramp for the Court, allowing it to keep Chevron’s framework intact. How the Court resolves Loper Bright will have massive implications for administrative law. On this panel, three distinguished administrative law scholars discuss the task before the Court in Loper Bright and the future of Chevron deference.
Featuring:
Prof. Nicholas Bagley, Professor of Law, University of Michigan Law School
Prof. Christopher J. Walker, Professor of Law, University of Michigan Law School
Prof. Ilan Wurman, Associate Professor, Sandra Day O’Connor College of Law, Arizona State University
(Moderator) Eli Nachmany, Former Law Clerk to Hon. Steven J. Menashi, U.S. Court of Appeals for the Second Circuit
It may surprise some to know that the government has definitive racial classifications for Americans, and it can be still further intriguing to find that the agency tasked with collecting, recording, and managing this data is the Office of Management and Budget. In this podcast, Prof. David Bernstein, author of Classified: The Untold Story of Racial Classification in America, joins us for an explanation of why this is and how we got here.
Featuring:
Prof. David Bernstein, University Professor of Law and Executive Director, Liberty & Law Center, Antonin Scalia Law School, George Mason University
In September, a panel of judges on the Fifth Circuit Court of Appeals heard oral argument in Illumina v. Federal Trade Commission. Earlier this year, the Federal Trade Commission (FTC) ordered biotechnology company Illumina to unwind its $8 billion acquisition of Grail, a cancer-screening startup. This case began with a 2021 administrative complaint challenging the transaction. In September 2022, the FTC’s administrative law judge (FTC) concluded that the FTC “failed to prove its asserted prima facie case that Illumina’s post-Acquisition ability and incentive to advantage Grail to the disadvantage of Grail’s alleged rivals is likely to result in a substantial lessening of competition in the relevant market.” The FTC complaint counsel appealed the decision of the ALJ to the commissioners, who then voted to overturn the ALJ’s decision, ordering Illumina to divest the acquisition. The case is now pending before the Fifth Circuit.
Please join us as we break down oral argument and discuss the broader implications of Illumina v. FTC.
Featuring:
Six months ago, we experienced bank runs and three of the four largest bank failures in U.S. history. Regulators declared there was "systemic risk" and provided bailouts for large, uninsured depositors. What is the current situation? While things seem calmer now, what are the continuing risks in the banking sector? Banks face huge mark-to-market losses on their fixed-rate assets, and serious looming problems in commercial real estate. How might banks fare in an environment of higher interest rates over an extended period, or in a recession? Reform ideas include a 1,000-page "Basel Endgame" capital regulation proposal. Which reforms make the most sense and which proposals don’t? Our expert and deeply experienced panel will take up these questions and provide their own recommendations in their signature lively manner.
Featuring:
- William M. Isaac, Chairman, Secura/Isaac Group
- Keith Noreika, Executive VP & Chairman, Banking Supervision & Regulation Group, Patomak Global Partners
- Lawrence J. White, Robert Kavesh Professorship in Economics, Leonard N. Stern School of Business, New York University
- [Moderator] Alex J. Pollock, Senior Fellow, Mises Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
For the past thirty years, the Magnuson-Stevens Act (MSA) has given the National Marine Fisheries Service (NMFS), an arm of the National Oceanic and Atmospheric Association (NOAA), the authority to place third-party observers on commercial fishing boats. Those observers have largely been federally funded except in certain limited instances where the MSA provides NMFS with the power to collect fees from the regulated industry. When NMFS and the New England Fishery Management Council decided to explore the possibility of increased discretionary monitoring in the Atlantic herring fishery, however, they realized the federal government would be unable to pay for additional monitoring. The solution was a rule that would instead shift the cost of increased coverage to small businesses—the fishermen themselves. NMFS estimated the cost of industry-funded monitoring in the herring fishery would run upwards of $700 per day and lead to a 20% reduction in most of the fleet’s net revenue.
If the story sounds familiar, that’s because the 2022 Academy Award Best Picture, CODA, concerns the same kind of industry-funded monitoring scheme in New England’s storied groundfish fishery. Up and down the Atlantic seaboard, commercial fishermen have long protested they are facing an onslaught of overlapping and ever-increasing state and federal regulations, all while fishing quotas and revenue continue to decline. NMFS, in the face of multiple lawsuits, has sought to justify industry-funded monitoring as a compliance cost necessary to preserve fishing stocks. Moreover, the agency has relied on Chevron deference to defend its reading of the MSA.
In May 2023, the Supreme Court agreed to hear Loper Bright Enterprises v. Raimondo, a lawsuit brought by a group of herring fishermen from Cape May, NJ challenging NMFS’s industry-funded monitoring rule. Rather than agreeing to directly address NMFS’s interpretation of its authority under the MSA, however, the Court agreed to consider whether Chevron v. NRDC should be overruled or, alternatively, clarified such that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in a statute does not constitute an ambiguity requiring deference to an agency. The implications of Loper Bright are tremendous across multiple agencies and regulatory spaces—it could turn out to mark a defining shift in administrative law.
Featuring:
Ryan Mulvey, Counsel, Cause of Action Institute
Eli Nachmany, Former Law Clerk to Hon. Steven J. Menashi, U.S. Court of Appeals for the Second Circuit
In May, the EPA proposed a new rule to regulate greenhouse gas emissions from new and existing power plants. This is a third attempt by the EPA to regulate these emissions. The Supreme Court struck down the Obama administration’s Clean Power Plan in West Virginia v. EPA, which was the first time the Court formally acknowledged and explicitly relied on the “major questions” doctrine. The DC Circuit had previously struck down the Trump Administration’s Affordable Clean Energy Rule and, although West Virginia involved an appeal of that decision, the Supreme Court did not rule on the Trump Administration’s rule.
The new rule’s supporters say it’s well in line with EPA’s statutory authority, the state of the electric markets, and available emissions-reduction measures. Its opponents say it is legally flawed and threatens grid reliability. What are the potential legal and policy issues associated with the proposed rule? Does it raise “major questions” issues? Is the agency relying upon unproven technology in violation of the statutory requirement that its standards be based only on the “best system of emission reduction” that “has been adequately demonstrated?” Does this rule violate state prerogatives for regulating existing sources? Join us as we explain the rule and then discuss the legal and policy issues it raises.
Featuring:
On President Biden’s first day in office, he signed Executive Order 13985: Advancing Racial Equity and Support for Underserved Communities Through the Federal Government. He then signed Executive Order 14035: Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce later that year on June 25, 2021. Taken together, these orders outline what President Biden has described as an “ambitious whole-of-government equity agenda.”
Executive branch agencies are now charged with creating, implementing, and assessing a large variety of DEI initiatives. As examples, agencies have been encouraged to hire a Chief Diversity Officer, workforce DEI training programs have been implemented and expanded, and federal health benefits have been augmented to include “comprehensive gender-affirming health care” for employees and their dependents.
These initiatives cost time, money, and resources, and they are not without controversy. Some question the legal grounding of these initiatives and assert that they run afoul of constitutional guarantees to equal protection of the law. A separate concern is whether federal DEI priorities fail on a utilitarian calculus and drain the federal government’s financial and manpower resources. Still, many Americans support the executive branch initiatives in both theory and practice.
Should the executive branch maintain such a robust focus on DEI initiatives? Is the current administration’s focus constitutional? Is it appropriate? Does it serve the American people?
Featured Speakers:
Veronica Venture, Deputy Officer for Civil Rights and Civil Liberties, Director of Equal Employment Opportunity and Diversity, Department of Homeland Security (DHS)
Hans von Spakovsky, Manager, Election Law Reform Initiative, Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation
Devon Westhill, President and General Counsel, Center for Equal Opportunity
Dean Todd Clark, Dean, Delaware Law School
[Moderator] Hon. Kenneth L. Marcus, Founder and Chairman, Louis D. Brandeis Center for Human Rights Under Law, Former Assistant U.S. Secretary of Education for Civil Rights, U.S. Department of Education
In October 2022, President Biden issued an executive order regarding the European Union - U.S. Data Privacy Framework. The Framework allows for data flows between the EU and the U.S., and it was established after the European Court of Justice struck down a prior agreement known as the EU-U.S. Privacy Shield. The executive order addresses U.S. collection of signals intelligence, which has been a source of concern for EU regulators and privacy advocates. The executive order limits signals intelligence collection to defined national security objectives, requires the privacy and civil liberties of all persons be considered regardless of nationality, and the collection must be proportionate. In addition, the executive order calls for a multi-layered review process that will allow individuals to lodge complaints regarding the collection of signals intelligence.
Our experts will discuss whether the Framework addresses the concerns of privacy advocates in the EU and the U.S., and they will consider the implications of the review process for U.S. intelligence collection. This program will also explore whether the EU and U.S. can reach a durable privacy agreement given the tension between EU privacy preferences and U.S. national security needs.
Featuring:
- Stewart Baker, Of Counsel, Steptoe & Johnson LLP
- Max Schrems, Founder, NOYB
- [Moderator] Matthew R. A. Heiman, General Counsel & Corporate Secretary, Waystar Health; Senior Fellow and Director of Planning, National Security Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
As children's lives become increasingly digital, how can we protect their safety online while weighing potential trade-offs like privacy interests and free speech?
Join us for a panel discussion examining the complex legal and ethical implications of enacting age verification requirements for access to social media and adult websites. The panel will dive into regulatory and legislative proposals and efforts, the role of tech companies and educational institutions, and the technological solutions available. Key questions include: How can we balance children's privacy and safety? What are the roles of government, companies, and parents? Is it necessary to restrict access by age? This timely discussion will provide a nuanced look at the issues from all sides as we seek to build a safer, more responsible digital world for the next generation.
Featuring:
- Clare Morell, Senior Policy Analyst, Technology and Human Flourishing Project, Ethics and Public Policy Center
- Ben Sperry, Senior Scholar, Innovation Policy, International Center for Law & Economics
- Jamie Susskind, Legislative Director for Senator Marsha Blackburn, U.S. Senate
- Shoshana Weissmann, Director, Digital Media, Communications and Fellow, R Street Institute
- [Moderator] Ashkhen Kazaryan, Senior Fellow, Free Speech & Peace, Stand Together
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Eleventh Annual Executive Branch Review Conference — EBRXI
Theme: Transparency, Accountability, and the Administrative State
The White House recently released much-anticipated changes to federal regulatory practices, including a new Executive Order 14094 on “Modernize Regulatory Review,” draft revisions to Circular A-4 governing regulatory impact analysis, and draft guidance on meetings with entities outside of the executive branch. The Office of Information and Regulatory Affairs (OIRA) has the lead for implementing these changes, which comprise the most significant regulatory policy initiatives of the Biden administration. In this opening session, OIRA experts, including several former OIRA administrators will review these developments.
Featuring:
- Anthony Philip Campau, Principal, Clark Hill Public Strategies & Attorney, Clark Hill PLC
- Susan Dudley, Director, GW Regulatory Studies Center & Distinguished Professor of Practice Trachtenberg School of Public Policy & Public Administration, George Washington University
- Sally Katzen, Professor of Practice and Distinguished Scholar in Residence & Co-Director of the Legislative and Regulatory Process Clinic, New York University
- [Moderator] Andrew Olmem, Partner, Mayer Brown
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
During President Obama’s second term, the U.S. Education Department began sharing studies indicating that black students were disciplined at higher rates than their white peers. These data were viewed as evidence of racial bias, and, in 2014, the Education and Justice Departments jointly published a resource package to help American schools “…promote fair and effective disciplinary practices that will make schools safe, supportive, and inclusive for all students,” (DOJ).
Supporters applauded these steps from the federal government saying they reduced schools’ racial disparities in disciplinary decisions thereby curtailing the “school-to-prison pipeline.” Critics countered that the guidance misstated federal civil rights law, encouraged racial discrimination in the allocation of school discipline to produce demographic parity, and left classrooms less functional.
The 2014 resource package was ultimately rescinded in 2018 under the Trump Administration, only to be largely restored by the Biden Administration. In May 2023, the Education and Justice Departments published a “Resource on Confronting Racial Discrimination in Student Discipline.”
What is the best path forward for appropriate and meaningful disciplinary decision making in American schools? How will our school children be best served? What does the evidence really show about race and school discipline? Please join us as an expert panel discusses the legal and educational contours of the most recent guidance on race and school discipline.
Featuring:
Dr. Juan Del Toro, Assistant Professor, Department of Psychology, University of Minnesota
Max Eden, Research Fellow, American Enterprise Institute (AEI)
Kristen Harper, Vice President for Public Policy and Engagement, Child Trends
Dan Morenoff, Executive Director, American Civil Rights Project
[Moderator] Alison Somin, Legal Fellow, Center for the Separation of Powers, Pacific Legal Foundation
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Join us for an in-depth exploration into the SEC's recent lawsuit against Coinbase – a case that will no doubt influence the legal landscape of crypto asset trading and securities laws well into the future.
The SEC alleges that Coinbase has operated its trading platform as an unregistered exchange, broker, and clearing agency, and further contends that Coinbase's staking-as-a-service program has been unlawfully engaged in securities offerings. On the other hand, Coinbase has challenged the classification of digital currencies as 'investment contracts' and has invoked the Major Questions Doctrine to question the SEC's authority to regulate without affirmative Congressional authorization.
Join Paul Grewal from Coinbase, Stephen Palley from Brown Rudnick LLP, and Professor J.W. Verret from George Mason University as they discuss regulators’ approach towards this burgeoning asset class, the legal arguments at play in the SEC’s lawsuit, and the broader implications of the case going forward.
Featuring:
- Paul Grewal, Chief Legal Officer, Coinbase
- Stephen Palley, Partner, Brown Rudnick LLP
- Moderator: J.W. Verret, Associate Professor of Law, George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
What does it take to attract the world's most brilliant minds?
In this Tech Roundup episode, Caleb Watney and Adam Thierer explore the United States’ approach towards highly skilled immigration, its impact on innovation and economic growth, and how it might be improved going forward.
They begin by looking backwards, highlighting contributions from scientific refugees that led to remarkable advances such as the Manhattan Project. The conversation then delves into present-day legislative scenarios, including bipartisan support and barriers to immigration reform, alongside an analysis of specific policies like the CHIPS Act and the potential to expand the O-1 visa for extraordinary ability. The episode underscores immigrants' contributions to entrepreneurship and contrasts the United States' policies with those of Canada, the UK, and China's aggressive talent recruitment strategies.
Tune in for an in-depth exploration of how the United States could maintain its competitive edge in the global race for talent.
Featuring:
- Adam Thierer, Senior Fellow, Technology & Innovation, R Street Institute
- Caleb Watney, Co-Founder and Co-CEO, Institute for Progress
Additional Resources:
- STEM Immigration Is Critical to American National Security
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
The debate over the electrification agenda and its implications for consumer choice and the environment remains contentious. As federal agencies like the U.S. Consumer Product Safety Commission and The Department of Energy look to regulate natural gas home appliances, many consumers have questions: where does the federal government draw authority to regulate climate? What potential health risks and price impacts loom over natural gas and electric appliances? Should consumers have the choice between natural gas appliances and electric appliances, or should new electric appliances be mandated and subsidized? In this episode, Ben Lieberman and Professor James Coleman discuss these questions and more.
Featuring:
- Ben Lieberman, Senior Fellow, Competitive Enterprise Institute
- Host: James W. Coleman, Professor of Law, Southern Methodist University Dedman School of Law
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Regulatory modernization has been a topic of nationwide interest in recent months. With its recently revised Circular A-4, the federal Office of Information and Regulatory Affairs has embraced an approach that could potentially lead to a massive expansion in the regulatory state. At the same time, the Commonwealth of Virginia has been pursuing a very different approach. Governor Glenn Youngkin issued an executive order, EO 19, which strives to reduce regulatory burdens by 25% while promoting more transparency in the process and better regulatory analysis.
This panel, which includes the Director and Deputy Director of Virginia’s Office of Regulatory Management as well as leading scholars in the regulatory space, will consider the reforms that Virginia is pursuing and examine whether and how they might work in other states and at the federal level. They will consider the challenges and opportunities associated with regulatory economic analysis and a regulatory budget, look at how the Virginia reforms have fared over the last year, and explore what it might mean to implement similar reforms in other jurisdictions.
Additional Reading:Reeve T. Bull, Virginia's Model: The Commonwealth Leads the Way on State Regulatory Modernization, Washington Legal Foundation, July 13, 2023, available at: https://www.wlf.org/2023/07/13/publishing/virginias-model-the-commonwealth-leads-the-way-on-state-regulatory-modernization/
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Affirmative action plans, though perhaps most associated with college admissions and higher education, actually crop up in a wide array of spaces, including in the context of employment. In this podcast, Eric Dreiband breaks down how Title VII of the Civil Rights Act of 1964 applies in the context of voluntary affirmative action plans. He explains not only what the criteria for such plans are, but also the risks employers should consider, what, if anything, has changed post SFFA v. Harvard, and when it could be legal to discriminate based on protected characteristics in the context of employment.
Are we ready to live under the watchful eye of drones?
In this Tech Roundup podcast, Trace Mitchell (Institute for Justice), Brent Skorup (Mercatus Center), and Jay Stanley (ACLU) discuss the rapid adoption of drone technology by law enforcement entities and the legal and policy implications of this trend.
They provide insights into recent court cases involving warrantless drone surveillance, spotlighting the difficulty in applying previous Fourth Amendment jurisprudence to this new technology. They discuss the legitimate interests of law enforcement in using drones but grapple with the societal risks of normalizing unending overhead surveillance. They explore establishing reasonable limitations, transparency, and democratic oversight in law enforcement drone programs.
Tune in to this thought-provoking conversation on personal liberties, privacy, and the future of law enforcement.
Featuring:
- Trace Mitchell, Litigation Fellow, Institute for Justice
- Jay Stanley, Senior Policy Analyst, Speech, Privacy, and Technology Project, ACLU
- [Moderator] Brent Skorup, Senior Research Fellow, Mercatus Center, George Mason University
Additional Resources:
- Michigan Drone Surveillance
- Eye-in-the-Sky Policing Needs Strict Limits
- 2023 State Drone Commerce Rankings
- Drones, Airspace Design, and Aerial Law in States and Cities
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
The National Marine Fisheries Service (NMFS), an arm of the National Oceanic and Atmospheric Administration (NOAA), recently saw one of its major agency efforts that placed severe limits on the Maine lobster fishing industry in the name of protecting right whales from being entangled in fishing gear rejected by the DC Circuit Court of Appeals. The far-reaching impact of NMFS’s rule on the Maine $1.5 billion dollar lobster fishing industry was widely reported, resulting in multiple lawsuits, and congressional action before it was rejected by the appeals court, who chided the federal agency for being “egregiously wrong” about its authority and assessments.
NMFS's efforts to restrict the lobster fishing industry through the enactment of rules under both the Endangered Species Act and Marine Mammal Protection Act is part of a larger trend. NMFS is also considering putting a speed limit on recreational boats in the Florida gulf to protect Rice’s whales, and another proposal to impose a speed limit across nearly the entirety of the Eastern seaboard, which coastal communities, boaters and fishermen claim will shut down harmless boating activity and place boaters in danger by demanding they travel at the speeds that make boat travel impossible. Environmental groups argue that these rules are necessary to protect a species that hangs on the brink of extinction.
Join us for a lively and engaging discussion surrounding the recent decision, and the legality and constitutionality of NMFS’s regulatory efforts. This will be a discussion between Jane Luxton, the Managing Partner of the DC office of Lewis Brisbois, one of the attorneys on the briefs for Maine Lobstermen’s Association, and a former General Counsel of NOAA, and Braden H. Boucek, Director of Litigation at Southeastern Legal Foundation who recently filed comments in opposition to the proposal to impose a speed limit in the Florida gulf.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Our Nation’s environmental laws and regulations are designed to foster the responsible use of natural resources while ensuring air, water, and land that is clean and safe for the citizenry as well as fish and wildlife. The U.S. Environmental Protection Agency (EPA), the U.S. Department of Justice (DOJ), and states are tasked with working cooperatively to ensure that these laws are faithfully enforced in a fair, consistent, and unbiased manner.
Across industries, compliance with environmental laws is strongly influenced by corporate culture, or a collection of values, expectations, and practices established by a company’s leaders and implemented through daily compliance-related activities performed by employees. But just as culture influences corporate behavior, it also influences government decisions regarding civil and criminal enforcement, including the targets of enforcement and the penalties and injunctive relief sought for violations. While general enforcement policies and priorities shift from administration to administration, the perception that individual enforcement actions are subject to partisan politics and outside influences risks erosion of the public trust and confidence in these same institutions.
Co-hosted by The Federalist Society’s Regulatory Transparency Project and ConservAmerica, this panel, comprised of leading voices on environmental enforcement, will discuss past and current environmental enforcement priorities, policies and actions at EPA and DOJ, the value of transparency and impartiality in environmental enforcement, and share varying perspectives on the future of environmental enforcement in the United States. The panel will also explore ways to increase environmental compliance and integrity in enforcement decision-making.
Featuring:
Our Nation’s environmental laws and regulations are designed to foster the responsible use of natural resources while ensuring air, water, and land that is clean and safe for the citizenry as well as fish and wildlife. The U.S. Environmental Protection Agency (EPA), the U.S. Department of Justice (DOJ), and states are tasked with working cooperatively to ensure that these laws are faithfully enforced in a fair, consistent, and unbiased manner.
Across industries, compliance with environmental laws is strongly influenced by corporate culture, or a collection of values, expectations, and practices established by a company’s leaders and implemented through daily compliance-related activities performed by employees. But just as culture influences corporate behavior, it also influences government decisions regarding civil and criminal enforcement, including the targets of enforcement and the penalties and injunctive relief sought for violations. While general enforcement policies and priorities shift from administration to administration, the perception that individual enforcement actions are subject to partisan politics and outside influences risks erosion of the public trust and confidence in these same institutions.
At a luncheon and panel event hosted by The Federalist Society’s Regulatory Transparency Project and ConservAmerica, Alaska Senator Dan Sullivan delivered a keynote address on the value of transparency and impartiality in environmental enforcement.
This year's sudden collapse of First Republic, Silicon Valley, and Signature banks were the second, third, and fourth largest bank failures in US history, bringing perceived systemic risk and bailouts of wealthy depositors. In addition, the global Credit Suisse bank collapsed and commercial real estate losses threatened. Politicians, regulators, and bankers are debating why the massive regulatory expansion following the last crisis didn't prevent the renewed failures. Some emphasize repetition of the classic financial blunder of buying long and borrowing short. Others question the 2018 reforms to the Dodd-Frank Act, or cite the monetary actions of the Federal Reserve. Various proposals include more deposit insurance, mark-to-market accounting, higher capital requirements, more stress tests, or bigger regulatory budgets.
Our expert panel will discuss the issues and risks going forward, the outlook for new legislation and regulation, and what, if anything, should be done.
On June 3, President Biden signed into law H.R. 3746, the Fiscal Responsibility Act of 2023 (Public Law 118-5). The Act made significant changes to federal permitting for major infrastructure projects, including the first significant amendments to the National Environmental Policy Act (NEPA) in its history. In this webinar, experts aim to shed light on the implications of these changes for our nation's environmental policy framework.
Our distinguished panelists will provide expert analysis and engage in a robust discussion on major issues raised by the new changes and their implications for permitting and NEPA review of major infrastructure projects.
Discussion will focus on changes to NEPA and related permitting for major infrastructure projects, including:
The plaintiffs in Utah v. Walsh filed a motion to halt implementation of the Department of Labor’s new rule, which provides increased flexibility for retirement plan fiduciaries to consider environmental, social, or governance (ESG) factors when making investment decisions and exercising shareholder rights. This coalition of 26 states, energy companies, a trade association, and private individuals argues that the new rule undermines the protections established by the Employee Retirement Income Security Act of 1974 (ERISA). In this webinar, Jared Kelson, Counsel for Plaintiffs Liberty Energy Inc., Liberty Oilfield Services LLC, and Western Energy Alliance, will provide an update on the ongoing litigation and discuss the broader implications of ESG considerations in retirement planning.
Featuring:
In the past several months, President Biden released a new national cybersecurity strategy. As part of that strategy, the Administration says that it will seek to “Shape Market Forces to Drive Security and Resilience – We will place responsibility on those within our digital ecosystem that are best positioned to reduce risk and shift the consequences of poor cybersecurity away from the most vulnerable in order to make our digital ecosystem more trustworthy, including by: . . . Shifting liability for software products and services to promote secure development practices.”
The concept of software liability has been the subject of much debate since it was first suggested more than a decade ago. With the new national strategy that debate becomes much more salient. In this webinar, cybersecurity experts will debate both sides of the question.
Featuring:
- Prof. Paul Rosenzweig, Professorial Lecturer in Law, The George Washington University
- Prof. Jamil N. Jaffer, Founder and Executive Director of the National Security Institute, Antonin Scalia Law School, George Mason University
- [Moderator] Robert Strayer, Executive Vice President of Policy, Information Technology Industry Council
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Following concerns about the information collected by and influence of the immensely popular Chinese-owned social media app TikTok, debates have sprung up: should TikTok be banned?
Some contend that TikTok poses a tangible and imminent threat to the United States’ national security, and that as such it should be banned immediately. Others assert it is a valuable and important platform for free speech, and that a full ban would violate citizens’ rights. These contrasting positions raise some important questions: is TikTok a threat to national security, and if so how should that be handled? Does TikTok’s “Project Texas,” which would purportedly have U.S. TikTok user data stored by a U.S. company suffice? Can one simply place restrictions on its use for individuals who deal with sensitive data (government employees, military members, etc.) or does the threat require a full ban? Additionally, who can/ should implement those restrictions? For a ban to be effective does it need to be national, or can states act effectively to restrict or ban TikTok themselves?
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On June 13, 2013, the Supreme Court issued its unanimous decision in Association for Molecular Pathology v. Myriad Genetics Inc. a case that would ban attempts to patent naturally occurring DNA sequences.
Now, ten years down the line with a decade of hindsight, Dr. Roger Klein, who played a central role as an expert, advisor, and spokesperson for the Association for Molecular Pathology in AMP v. Myriad, joins us to discuss this important case. In this Explainer we discuss the context surrounding this case, the debates that arose, and the impact this rule had across the past 10 years.
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In this Tech Roundup episode, we delve into the discussions raised by the U.S. Senate Judiciary Committee's recent hearing on AI regulation.
Neil Chilson and Adam Thierer offer an in-depth analysis of the various approaches to AI that are being considered by regulators and in public policy circles – from voluntary efforts by the industry to promote transparency and accountability to advocating for licensing and testing requirements for AI deployment to the prospect of a global regulatory body for AI. They explore whether AI presents fundamentally new questions for policymakers, or whether regulators already have the tools they need. They discuss the risk of over-regulating this new innovative space and the potential consequences of doing so.
Don't miss out on this extensive conversation on one of the most important issues in tech policy today.
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
On April 6, 2023, the Biden Administration announced two new efforts to "modernize regulatory review" – the first through the signing of Executive Order 14094 and the second through proposing revisions to OMB's Circular A-4, the government-wide guidance on regulatory analysis. Public comments on the proposed revision of Circular A-4 are due by June 6, 2023.
In this Explainer podcast, Howard Beales, Karen Harned, and Paul Ray discuss the new developments around how the Biden Administration and federal agencies will approach cost-benefit analysis. They explore the importance of long-standing regulatory review processes, concerns around the potential politicization of cost-benefit analysis, changes to the threshold for OIRA to review regulations, and how these developments may ultimately affect the American people.
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Biosimilars, a category of biologic (medicine derived from a living organism), require approval, at least in the U.S. by the Food and Drug Administration (FDA). There are two types of approval the FDA can give a biosimilar: “approved” and “interchangeable.” This distinction, unique to the U.S. system, along with the burden of proof required by the FDA, can cause confusion and create challenges for manufacturers seeking to get a biosimilar licensed.
In this podcast Dr. Roger Klein (M.D. J.D.) joins us to provide an introduction to biologics & biosimilars: what they are, how they are regulated/ approved in the United States, and what the effects of our current regulatory system can be for the approval of biosimilars.
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
The United States Department of Housing and Urban Development’s Affirmatively Furthering Fair Housing rules have careened wildly back and forth as administrations have changed. Most recently, on February 9, 2023, the Department of Housing and Urban Development published in the Federal Register a proposed regulation entitled “Affirmatively Furthering Fair Housing.” Under this version, HUD would require recipients of federal financial assistance to do more than simply stamp out discrimination, but rather to take affirmative action to overcome disparate racial outcomes in housing.
HUD first proposed detailed regulations concerning AFFH during the Obama administration, and ultimately adopted final regulations in 2015, which required more than 5,000 program participants, including states, municipalities, and public housing authorities to develop plans, utilizing a computer based geospatial mapping and data tool and a template of required questions to address “fair housing issues” such as perceived disparities in access to areas of opportunity. Implementation was delayed under the Trump administration, but the first attempt at an alternative regulation, which would have focused grantees’ efforts on the dismantling of regulatory barriers to housing production, was never finalized, and, instead, a final regulation that replaced the 2015 rule with a barebones certification requirement was implemented at the end of his term. That regulation, in turn, was repealed early in the Biden administration before it then published the proposed rule this February. Under it, communities must affirmatively address any existing patterns of adverse impact by providing housing for them in better areas or, alternatively, transforming the community. It focuses on state and local jurisdictions preparing “equity plans” that describe how they will incorporate procedures, not only with respect to housing but also education, transportation, and other local planning considerations, to advance more racially balanced communities. The comment period on the regulation ended on April 10, 2023.
In this webinar, a panel of ideologically diverse experts will discuss the latest proposal of HUD’s AFFH requirements for state and local governments.
Featuring:
This webinar will explore central bank digital currencies (CBDCs) and the ongoing debates over financial privacy, especially in relation to use of cryptocurrencies and other software privacy tools.
The webinar will begin with a discussion between Rep. Tom Emmer, the Majority Whip of the U.S. House of Representatives, and Prof. J.W. Verret of the Antonin Scalia Law School regarding legislation introduced by Rep. Emmer and a coalition of members to prevent the Federal Reserve from introducing a CBDC. They will also discuss the Treasury Department's sanctioning of the Tornado Cash privacy protocol and the legal authority of that action. This discussion will be followed by an expert panel that will further explore these issues, as well as legislation proposed by Sen. Elizabeth Warren to ban crypto and other software privacy tools.
In March 2022, the Securities and Exchange Commission proposed a new rule that would establish climate-risk disclosure requirements for public companies. The 490-page proposal includes requirements for disclosing direct greenhouse gas emissions (scope 1) and indirect emissions related to use of electricity or other forms of energy (scope 2). While supporters hailed the proposed rule’s effort to standardize the disclosures many ESG-focused funds have been making, others zeroed in on a requirement that would obligate larger companies to disclose GHG emissions from upstream suppliers and downstream customers (scope 3).
After receiving thousands of comments favoring and opposing the proposal, the SEC postponed its target date for finalizing the rule to spring 2023. Much of the debate centers on the scope of the SEC’s authority to mandate climate risk disclosure, an issue that took on additional dimensions after the Supreme Court’s June 2022 decision in West Virginia v. EPA, which struck down an EPA rule regulating GHG emissions under the Clean Air Act as contrary to the “major questions doctrine.” Many predict that the final ESG rule will be litigated regardless of what changes the SEC may make to address issues that commenters raised.
With the SEC ESG final rule expected soon, this program brings together distinguished speakers who will outline the arguments for and against the SEC’s effort to regulate in this area.
Paul Ray leads The Heritage Foundation’s work on regulatory and economic policy as Director of the Thomas A. Roe Institute for Economic Policy Studies, building on his previous experience as Senate-confirmed Administrator of the Office of Information and Regulatory Affairs at the Office of Management and Budget. He has written widely on a number of regulatory issues, including the SEC’s authority to set corporate climate policy.
George Georgiev is an Associate Professor of Law at Emory University Law School, focusing on Business Law, Corporate Governance, Securities Regulation, Mergers & Acquisitions, Corporate Finance, and Executive Compensation. Professor Georgiev co-authored an analysis affirming the SEC’s authority to adopt climate-related disclosure rules, and filed comments in the rulemaking.
The panel will be moderated by Jane Luxton, Managing Partner of the Washington, DC office of Lewis Brisbois Bisgaard & Smith, and co-chair of the firm’s Administrative Law & Regulatory Practice.
Food is a necessity for life. It should therefore surprise few that the federal government regulates the production and processing of food before it reaches our dinner tables. Labels indicating some meats are “USDA-Prime” or confirming that the product was inspected and approved as safe before delivery to the grocery store reflect this regulatory role.
While labels may make the regulation apparent, which part of the administrative state handles that regulation can be less clear. Two agencies: the United States Department of Agriculture (USDA) and the Food and Drug Administration (FDA) -- part of the Department of Health and Human Services -- both have jurisdiction over the foods we consume. Which agency handles what is not always apparent. Recent illnesses and deaths involving baby formula and spinach -- both under the FDA's inspection jurisdiction -- have emphasized that regulatory structure can have life-or-death consequences. This has led some on both sides of the aisle to suggest a revamp of how we handle food safety regulation. One group contends the FDA should take the lead (Food being literally in the name); a second argues the USDA should run point (agriculture being the first step to food production), and a third group argues creating a separate agency entirely would be the best solution. The FDA itself has proposed an internal reorganization to emphasize its food safety mandate.
This panel of FDA and USDA veterans whose service spanned multiple administrations will examine the questions (1) how safe is our food, (2) is a reorganization of the agencies that handle food safety necessary to achieve the maximum level of safety, and (3) how should such a reorganization look.
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On December 30, 2022, the Environmental Protection Agency (EPA) published an updated rule on the Renewable Fuel Standard (RFS) that represents a significant departure from previous RFS rules. It includes a major new regulatory regime for Renewable Identification Numbers from renewable electricity (eRINs) and it proposes renewable fuel volume targets that are no longer prescribed in statute.
In this webinar, leading experts will provide background on the RFS, delve into the details of the proposed rule, including its potential costs and benefits, and address questions regarding statutory authority and the non-delegation doctrine. Within the next two months, the agency is expected to finalize this rule that could drastically change the nature of the RFS.
Featuring:
Jonathan Brightbill, Partner, Winston & Strawn LLP
Brendan Williams, Vice President of Government Relations, PBF Energy
[Moderator] Daren Bakst, Senior Fellow and Deputy Director of the Center for Energy and Environment, Competitive Enterprise Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
In a highly anticipated decision, the Supreme Court held in Axon Enterprise, Inc. v. FTC (consolidated with Cochran v. SEC) that federal district courts have jurisdiction to resolve challenges to the structure and existence of federal agencies whose decisions are subject to review in a court of appeals. The decision confirms that regulated entities in enforcement proceedings before the FTC and SEC need not await a final agency decision to raise these fundamental challenges—and it raises a number of questions as well. What types of questions are covered by Axon? Which other agencies are implicated by the decision? What does this decision mean for the future of administrative enforcement?
The European Union is considering adopting a wide-ranging regulatory regime for the licensing and litigation of standard essential patents (SEPs). Proposed for release on World IP Day (April 26, 2023), a leak revealed the EU plan to create an administrative tribunal to perform mandatory “essentiality checks” of certain SEPs, set royalty rates for those SEPs, mandate public disclosure of licenses, and provide mandatory but non-binding conciliation for disputes. Critics contend that this regulatory regime is unnecessary and will stifle the explosive rate of innovation in mobile telecommunications with added costs. Supporters argue this regime will bring more certainty in the marketplace and reduce costs in litigation over SEPs. This panel of experts will discuss the EU proposal and its implications for participation in standards development, patent law, commercial law, competition law and innovation policy in the global innovation economy.
Featuring:
Elisabeth Opie, Founder and Principal Solicitor, Opie International Technology Lawyers
Adam Mossoff, Professor of Law, Antonin Scalia Law School, George Mason University
Jorge Contreras, Professor of Law, University of Utah College of Law
[Moderator] Urška Petrovčič, Senior Fellow, Hudson Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Artificial Intelligence (AI), once the stuff of science fiction, is now more than ever a part of everyday life, regularly affecting the lives of individuals the world over, sometimes in ways they may not even know. AI is increasingly used both in the public and private sectors for facial recognition, dataset analysis, risk and performance predictions, and much more, though how companies use it and the actual input it has can be unclear.
Experts have warned that the expanded use of AI, especially in areas related to labor and employment, if uninvestigated, could pose serious issues. Some contend that the use of AI tools can help make hiring processes more efficient and perhaps remove human biases from the equations. Others note that while this may be an admirable goal, many AI tools have been shown to produce discriminatory outcomes. The opaque nature of how some of these AI tools operate further complicates matters, as how an AI came to a particular decision and the data it referenced may not be clear to the human reviewer, thus making the identification of discriminatory practices harder to identify.
All of these issues, especially given the increasing use of AI tools in the hiring processes of many companies, raise several questions concerning AI’s entrance into the Labor and Employment space. What benefits and challenges does using AI in hiring present? How can AI be used to combat discrimination? What happens when AI itself is discriminatory, how can that be identified and addressed? What statutes and regulations apply to AI, and do the existing legal and regulatory frameworks concerning anti-discrimination in labor and employment suffice to address the novel nature of AI?
Featuring:
David Fortney, Co-Founder, Fortney & Scott LLC, & former Chief Legal Officer, U.S. Department of Labor
Prof. Aram Gavoor, Associate Dean for Academic Affairs; Professorial Lecturer in Law, The George Washington University
Hon. Keith Sonderling, Commissioner, Equal Employment Opportunity Commission
Moderator: Hon. Phillip Miscimarra, Partner, Morgan & Lewis, & former Chairman, National Labor Relations Board
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Artificial Intelligence (AI), once the stuff of science fiction, is now more than ever a part of everyday life, regularly affecting the lives of individuals the world over, sometimes in ways they may not even know. AI is increasingly used both in the public and private sectors for facial recognition, dataset analysis, risk and performance predictions, and much more, though how companies use it and the actual input it has can be unclear.
Experts have warned that the expanded use of AI, especially in areas related to labor and employment, if uninvestigated, could pose serious issues. Some contend that the use of AI tools can help make hiring processes more efficient and perhaps remove human biases from the equations. Others note that while this may be an admirable goal, many AI tools have been shown to produce discriminatory outcomes. The opaque nature of how some of these AI tools operate further complicates matters, as how an AI came to a particular decision and the data it referenced may not be clear to the human reviewer, thus making the identification of discriminatory practices harder to identify.
All of these issues, especially given the increasing use of AI tools in the hiring processes of many companies, raise several questions concerning AI’s entrance into the Labor and Employment space. What benefits and challenges does using AI in hiring present? How can AI be used to combat discrimination? What happens when AI itself is discriminatory, how can that be identified and addressed? What statutes and regulations apply to AI, and do the existing legal and regulatory frameworks concerning anti-discrimination in labor and employment suffice to address the novel nature of AI?
Featuring:
Hon. Keith Sonderling, Commissioner, Equal Employment Opportunity Commission
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
What happens when the Administration's "whole-of-government approach" to climate change meets federal contracting? The Department of Defense, the Government Services Administration, and NASA have jointly proposed a revision to the Federal Acquisition Regulations that would require government contractors to publicly disclose greenhouse gas emissions and climate-related financial risk and to set science-based reduction targets. The agencies cast the proposal as a way to reduce climate-related risks, increase U.S. competitiveness, and promote economic growth. But critics say that the proposed rule would exceed the agencies' authority, increase federal procurement costs, and unconstitutionally delegate policy-making authority to the private entities that would be charged with policing contractors' compliance.
The panel will discuss the origins as well as the potential benefits and risks of this innovation in government contracting policy.
Featuring:
John Kostyack, Ceres Accelerator for Sustainable Capital Markets, Ceres
Brian Richman, Associate, Gibson, Dunn & Crutcher
Markus Speidel, Procurement Law Alumnus, The George Washington University
Moderator: Adam Gustafson, Senior Counsel for Environmental and Regulatory Affairs, Boeing
Visit our website - www.RegProject.org - to learn more, view all of our content, and connect with us on social media.
Social media platforms have emerged as the new “town square” and a key forum for public debate, but some have questioned whether that debate is as open and robust as it should be. On the other hand, some worry that efforts to regulate social media platforms may themselves crimp debate. At the heart of the discussion is Section 230 of the Communications Decency Act. A panel of experts discussed what Section 230 permits and doesn’t permit—a question now before a number of courts, including the U.S. Supreme Court in Gonzalez v. Google.
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Recent months have seen a flurry of notable developments at the Federal Trade Commission, including oral arguments in the high-profile Axon v. FTC and SEC v. Cochran Supreme Court cases, administrative complaints challenging deals between Altria and JUUL and Illumina and GRAIL, and FTC Commissioner Christine Wilson’s announced resignation.
This episode is a live recording of a panel of antitrust law experts examining these developments and debating what might come next at the FTC.
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In late February 2023, the FDA released its responses to the December 2022 Reagan-Udall Foundation reports on the FDA's Human Foods and Tobacco programs.
In this follow-on explainer podcast, we once again host Jeff Stier to discuss what these initial responses include, what issues they address, and what one might want to watch moving forward.
Featuring:
Jeff Stier, Senior Fellow, Consumer Choice Center and Taxpayers Protection Alliance
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In January 2023, the FTC announced a proposed rule that would ban noncompete agreements across most of the U.S. economy – a move President Biden lauded in his recent State of the Union address. While noncompete clauses have existed for centuries and have traditionally been regulated under state law, they have also become a focal point for the executive and legislative branches of late. The FTC's proposed rule represents a recent effort to shift enforcement, both substantively and procedurally. The proposed rule purports to rely on the Commission's "unfair methods of competition" (UMC) authority under Section 5 of the FTC Act. This is the first time in decades the FTC has sought to engage in a UMC rulemaking, and only the second time it has ever done so.
Questions are already beginning to arise as to not only the substantive benefits of such a ban, but also the FTC's underlying authority to enact this rule. As a threshold matter, the FTC's ability to engage in UMC rulemaking is somewhat unclear – the statutory basis for this authority is hotly disputed and very likely to be challenged. The FTC's assertion that the rule would supersede contradictory state laws is also likely to draw challenges. Moreover, many have raised concerns that the proposed rule – which the FTC argues would immediately impact about 20% of the U.S. workforce – runs afoul of the major questions and nondelegation doctrines. Additionally, there are questions regarding how such a rule would ultimately impact employees, employers, and the workforce more broadly – in particular, whether such a ban is more likely to enhance or impair innovation. Our experts will discuss the genesis of the FTC's proposed ban on noncompete agreements, including the statutory and empirical evidence underpinning the rule, as well as what we can expect in the coming months and years as the FTC moves towards adopting and enforcing the rule.
Introduction:
Svetlana Gans, Partner, Gibson, Dunn & Crutcher, LLP
Keynote Address:
Rahul Rao, Deputy Director, Bureau of Competition, Federal Trade Commission
Panel Discussion:
Corbin Barthold, Internet Policy Counsel and Director of Appellate Litigation, TechFreedom
Diana Furchtgott-Roth, Director, Center for Energy, Climate, and Environment and The Herbert and Joyce Morgan Fellow in Energy and Environmental Policy, The Heritage Foundation
Justin (Gus) Hurwitz, Professor of Law and the Menard Director of the Nebraska Governance and Technology Center, University of Nebraska College of Law
Matthew Sipe, Assistant Professor of Law, University of Baltimore
Evan Starr, Associate Professor, Robert H. Smith School of Business, University of Maryland
Moderator: Elyse Dorsey, Partner, Kirkland & Ellis LLP
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Signed into law in 1965, Medicaid has been active for almost 58 years, during which time its scope has fluctuated and many conversations have been had as to what the appropriate reach, means, and aims for the program should be. In this podcast featuring Tom Miller, he lays out a brief summary of how we got to where we are. He highlights the benefits Medicaid has brought as well as some of the downsides he perceives, and lays out a possible path forward to better healthcare that practically addresses the hurdles to healthcare reform legally, financially, and politically.
Featuring:
Last November, the Federal Trade Commission accepted comments on its proposal to start a rulemaking related to "Commercial Surveillance" - the agency's newly minted term for any and all business use of data about customers. The FTC has for decades sought to protect consumer privacy and data security through case-by-case application of its general consumer protection authority. It also is charged with rulemaking in a few narrow areas of privacy and data security. In practice, the FTC has become the U.S.'s primary privacy and data security enforcer. Now, while congress deliberates on whether and how to adopt a general privacy law, the FTC seeks to fill a perceived gap with agency rules. Does the agency have the authority to do so? What can we learn from the proceeding thus far? What are the agency's likely next steps and will it succeed? Our participants will discuss the proceeding, their participation in it, and what comes next.
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In November 2022, the Alliance Defending Freedom (ADF) filed a federal lawsuit in the U.S. District Court for the Northern District of Texas, Amarillo Division, against the United States Food and Drug Administration (FDA) on behalf of the Alliance of Hippocratic Medicine (AHM) and others.
The suit challenges the FDA’s 2000 decision to legalize mifepristone and misoprostol, two drugs often used in conjunction as chemical abortifacients. The petitioners argue that the legalization of these chemical abortion drugs undermines the FDA’s legal obligation to protect the health, safety, and welfare of young girls and women. Further, the petitioners allege the FDA disregarded notable evidence that chemical abortion drugs are more likely to cause more harm and complications than a surgical abortion, and terminated the necessary safeguards for pregnant women and girls who undergo this controversial drug regimen. Finally, the petitioners contend that the FDA allowed these chemical abortion pills to be delivered via mail in violation of long-standing federal laws.
This Litigation Update with Erik Baptist, a litigating attorney for ADF, will provide a current look at this case, what the facts are, how the case is going, and what the possible outcomes and ramifications thereof may be.
Featuring:
Erik Baptist, Senior Counsel, Alliance Defending Freedom
[Moderator] Roger Klein, Faculty Fellow, Center for Law, Science & Innovation, Sandra Day O'Connor College of Law, Arizona State University
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The collapse of FTX has intensified the debate about how cryptocurrencies should be regulated, including proposed federal legislation. With a string of cryptocurrency failures and tens of billions in losses for investors, increased regulation has become a hot topic. As Bloomberg summarized: “Crypto is squarely in the cross hairs of Washington” and “Oversight of digital assets is among the most pressing issues for US financial watchdogs.”
Should cryptocurrency firms be regulated as banks? Should cryptocurrency assets be regulated as securities or as commodities? If so, who is the right regulator? Do we need new federal legislation? With enhanced financial and risk disclosures, should cryptocurrency firms only be subject to standard commercial law and, if they fail, normal bankruptcy proceedings? These issues will be addressed by this fourth in a continuing series of cryptocurrency webinars presented by the Federalist Society’s Financial Services and E-Commerce Practice Group.
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Although primarily an enforcement agency, the Federal Trade Commission (FTC) has issued a historic number of proposed rules over the past two years. From prohibiting non-compete provisions potentially impacting 30 million employment contracts or privacy and data security rules implicating personal information online, these proposed rules will affect most sectors of the U.S. economy. This panel of experts will explore how a federal agency undertakes the cost-benefit analysis for proposed rules, comparing independent agencies to those subject to OIRA review, and provide practical tips for lawyers and economists working on agency rulemaking comments.
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Energy consumers continue to see rising rates, but how do regulators decide the rate that consumers pay? In this episode, James Coleman and Mark Ellis explain the relationship between federal and state regulators and utility companies, the financing models behind regulated rates, and the incentives created by these models. What are the implications of state-regulated projects? How do utility companies respond, and what are the risks? What is the impact on consumers? In this episode, experts address these questions and more.
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On December 29, 2022, President Biden signed the Consolidated Appropriations Act, 2023 into law. This omnibus law is over 4,100 pages, and, like many omnibus bills, affects a broad range of issues.
According to Dr. Joel M. Zinberg, physician and health care expert, one such issue is the practice of medicine, as a nineteen-line section relating to the authority of the Food & Drug Administration (FDA) may fundamentally change the future viability of off-label prescriptions. Dr. Zinberg joins us in this podcast to explain the Act’s provisions concerning the FDA, the possible implications on the practice of medicine, and possible solutions to the potential pitfalls posed by these new health care provisions.
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Under the Biden Administration, Consumer Financial Protection Bureau Director Rohit Chopra has dramatically increased the substantive reach of the CFPB’s use of guidance documents and examination and supervision powers. This includes the articulation of a new standard of Unfair, Deceptive, or Abusive Acts or Practices (UDAAP) that includes allegedly discriminatory practices. It also has announced it intends to use “dormant” powers from Dodd-Frank that would allow it to conduct supervisory exams on nonbanks or any fintech it believes is risky. Many critics argue that many of these acts should be conducted through notice and comment rule-making processes and point to similar efforts during the Obama Administration when similar extensive use of guidance was treated as equivalent to a rulemaking for purposes of the Congressional Review Act. A major lawsuit has also challenged this assertion of authority by the CFPB.
In this episode, experts discuss the specifics of the CFPB’s assertion of expansive authority in these areas, the use of supervision more generally in relation to rulemaking, and the lawsuit that has challenged these acts.
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Title VI and IX apply to all colleges and universities that accept federal funds, which, as a condition of accepting those funds, agree they will enforce all Federal Civil Rights laws. However, sometimes programs offered by such institutions seem to run afoul of Title VI and IX, and when that happens, a recourse is to file a complaint with the Office of Civil Rights. In this explainer podcast, Dr. Mark Perry, who has filed Title VI and IX complaints against hundreds of colleges and universities across the U.S., joins us to discuss that process. He brings his expertise to give a window into the procedural aspects of this system, what they are, why such complaints may be valuable, and the considerations a potential complainant might want to consider.
For those who would like to learn more, independent of this podcast or RTP, Dr. Perry notes he can be reached at mark.perry@aei.org, or via direct message on Twitter at https://twitter.com/Mark_J_Perry.
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The EPA has rescinded The Safer Affordable Fuel Efficient Vehicles Rule Part One: One National Program rule. It has reinstated a waiver of Clean Air Act (CAA) preemption for California’s greenhouse gas standards and Zero Emission Vehicle sales mandate. These are some facets to California’s Advanced Clean Car Program.
In Ohio v. EPA, now pending before the D.C. Circuit, various industry and state petitioners have challenged EPA’s reinstatement of the waiver as preempted by the CAA; and have argued that Congress has not implicitly authorized it either. Numerous amici have weighed in on this issue as well. The D.C. Circuit soon will hear oral argument in this case, which eventually might make it to the Supreme Court.
Raised by some amici, one of the pertinent issues here is that the federal government is showing favoritism to California in contravention of the Constitution’s equal-sovereignty principle, which the Supreme Court has recognized in a long line of cases (most recently culminating in Shelby County v. Holder).
This litigation update will feature a vital discussion from the eminent Jonathan Brightbill, who served as Acting Assistant Attorney General of the United States (leading the Justice Department’s Environment and Natural Resources Division, where he worked on the Trump Administration’s One National Standards Rule), and who currently is a partner at Winston & Strawn LLP; Robert Percival, the Robert F. Stanton Professor of Law and the Director of the Environmental Program at the University of Maryland School of Law; and Sohan Dasgupta, who served as the Deputy General Counsel of the U.S. Department of Homeland Security and who is a partner at Taft LLP.
Featuring:
Jonathan Brightbill, Partner, Winston & Strawn LLP
Robert Percival, Robert F. Stanton Professor of Law, University of Maryland Carey School of Law
[Moderator] Sohan Dasgupta, Partner, Taft Stettinius & Hollister LLP
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
On December 19, 2022, the Reagan-Udall Foundation for the Food and Drug Administration, an independent 501(c)(3) organization created by Congress “to advance the mission of the FDA to modernize medical, veterinary, food, food ingredient, and cosmetic product development, accelerate innovation, and enhance product safety” released the second of two highly anticipated reports on its state of affairs. The first, released December 6, 2022, served as an operational evaluation of the FDA’s Human Foods program, which had struggled significantly during the course of the supply chain issues brought on during the COVID pandemic. The second December 19th, 2022 report covered “certain components of FDA’s Tobacco program,” evaluating operations there. Both were highly anticipated not just because of the serious and pertinent issues they addressed, but because questions circulated concerning how the Foundation is made up of many former FDA high officials, and how the report would rate the proceedings of the current FDA team.
In this podcast Jeff Stier, a senior fellow at the Consumer Choice Center, senior fellow at the Taxpayers Protection Alliance, and a policy advisor to the Heartland Institute breaks down some of what the reports say, and what the next steps for both the FDA and Congress may be.
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The Federalist Society’s Regulatory Transparency Project and Capitol Hill Chapter hosted the third in a lecture series on the administrative state. The subject of this discussion was the major questions doctrine and how Congress may respond to the Supreme Court’s decision in West Virginia v. EPA.
Arguably unenforced for some time, recent federal court cases have once again raised the specter of nondelegation doctrine. In so doing, cases such as West Virginia v. EPA at the Supreme Court, and the 5th Circuit’s decision in Jarkesy v. SEC, arguably throws into question the status quo under which administrative agencies have heretofore operated.
In this final event in our co-sponsored luncheon series on the administrative state, experts investigated the impact such cases may have on Congress in terms of lawmaking delegation, and looked to forecast what Congress can expect if SCOTUS continues to enforce the nondelegation doctrine while moving away from former deference doctrines.
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The Federalist Society’s Regulatory Transparency Project and Capitol Hill Chapter hosted the second in a lecture series on the administrative state’s role in policymaking in modern American government.
This second event of our co-sponsored series on the Administrative State focused on the role of the administrative state in policymaking. Through its various roles and capacities, the Administrative state can have great leeway to create policy that has similar effects to rules and laws created through the legislative process but comes to be via different means. Agencies can make rules, issue guidance documents that often carry significant weight, interpret statutes, and enforce their rules. All these can contribute to agencies making policies that have the force of law.
Some argue that this policy-making by non-elected individuals serving in the administrative state is improper and usurps elected officials’ authority. Others contend this is a valuable and necessary part of the Administrative State’s ability to operate as authorized, and that the policy-making capacity of the Administrative State is a net benefit.
Panelists David Fotouhi, a current partner at Gibson, Dunn & Crutcher LLP who spent four years serving with the EPA, and Richard Peirce, a professor of Law at George Washington University who focuses on the Administrative State, discussed the policy-making power of the Administrative State, and the practical ways in which that power can often be applied. Judge Lisa Branch moderated the discussion.
Featuring:
The first in a lecture series on how the administrative state functions in modern American government, presented by the Federalist Society’s Regulatory Transparency Project and Capitol Hill Chapter.
This first luncheon featured former “regulations czar” Paul J. Ray, who served as President Trump’s Office of Information and Regulatory Affairs Administrator (OIRA). As OIRA Administrator, Ray oversaw the review of hundreds of regulations, and led efforts on regulatory reform.
The luncheon also featured Boris Bershteyn, a partner at Skadden, Arps, Slate, Meagher, and Flom, LLP. Mr. Bershteyn served as acting Administrator of ORIA in 2012 and 2013. He was also General Counsel of the Office of Management and Budget starting in 2011.
Our moderator was Hon. Stephen Alexander Vaden from the United States Court of International Trade. Before joining the bench, Judge Vaden served as General Counsel of the United States Department of Agriculture. During his nearly four-year tenure as head of the Office of General Counsel, the Department won two cases before the United States Supreme Court, relocated and reorganized the agencies that comprise the Department to better serve rural America, engaged in substantial regulatory reform, developed new regulations to allow for the legal sale of hemp and the labeling of bioengineered products, and implemented the 2018 Farm Bill.
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In this podcast episode, Michael Cannon, Director of Health Policy Studies at Cato Institute and Marisa Maleck, Partner at King & Spalding LLP join us to discuss telehealth regulation - what it is, what happened to it during COVID-19, and what the opportunities and barriers are for future telehealth innovation.
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
In this podcast, technology and data privacy experts discuss the evolving landscape of artificial intelligence, machine learning, and what these new technologies mean for existing and future policy and technology innovation. Without a clear regulatory framework, differing definitions and taxonomies have been adopted to regulate AI technology. What will future AI trends look like, and what should policymakers prioritize moving forward?
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In this episode, Hon. Gail Heriot, discusses her recent article for the New Criterion, An Agenda for Congress, in which she provides recommendations for Congress to adjust existing incentives that provide structural support for race-preferential admissions. Professor Heriot shares her projections for the outcome of Students for Fair Admissions against Harvard and the University of North Carolina, and what the implications of these cases will be for colleges and universities.
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Kimberly Hermann, General Counsel for Southeastern Legal Foundation and Tiffany Justice, Co-Founder of Moms for Liberty, share their insights on the interplay of parents, unions, and government regulators. In this episode, learn how "parental rights" have become a growing influence on education reform.
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
On November 7, the U.S. Supreme Court heard Axon Enterprise, Inc. v. Federal Trade Commission, to decide whether Congress stripped federal district courts of jurisdiction over constitutional challenges to the FTC by granting the courts of appeals jurisdiction over FTC cease-and-desist orders. This panel will discuss key take-aways from the oral argument and implications for administrative litigation at the Federal Trade Commission, and perhaps for other agencies as well.
Featuring:
Ashley Baker, Director of Public Policy, Committee for Justice
Ronald Cass, President, Cass & Associates, PC
Henry Su, Partner, Bradley Arant Boult Cummings LLP
[Moderator] Svetlana Gans, Partner, Gibson, Dunn & Crutcher, LLP
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Some employers were surprised by the en banc Fifth Circuit’s December 2021 decision in Helix Energy Solutions Group, Inc. v. Hewitt that a supervisor for an offshore oil company who received approximately $1,000 per day for a total of over $200,000 annually was eligible for overtime pay under the Fair Labor Standards Act.
The Act exempts from overtime pay workers “employed in a bona fide executive, administrative, or professional capacity,” and the oil company argued that a highly compensated supervisor like Mr. Hewitt qualifies for this “EAP” exemption. The en banc Fifth Circuit applied a Department of Labor regulation requiring EAP-exempt employees to have a fixed weekly salary to conclude that, notwithstanding high pay and supervisory duties, Mr. Hewitt was non-exempt because he was paid on a daily rather than weekly basis.
However, that argument has not been accepted across the bench. Judge Jones dissented that the weekly salary rule is inapplicable for workers who satisfy a separate regulatory requirement for exempt “highly compensated employees” who make over $100,000 per year (now $107,432). Judge Wiener’s dissent added that application of the weekly salary rule—which dates from 1940s—is illogical and unreasonable under the circumstances. DOL took no view on this case.
Additionally, Helix Energy created an apparent split with the First and Second Circuits, and the Supreme Court granted on certiorari May 2, 2022. Oral argument took place October 12. If the Court upholds the decision, employers that relied on the First and Second Circuits may face significant retroactive liability.
In this podcast, experts provide a litigation update on Helix Energy, what it is, what the possible outcomes may be, and the potential consequences of the same.
Featuring:
Dave Dorey, Senior Litigation Counsel, The Fairness Center
Timothy Taylor, Partner, Holland & Knight LLP
[Moderator] Sheng Li, Litigation Counsel, New Civil Liberties Alliance
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Tornado Cash is an open source, decentralized cryptocurrency tumbler that was introduced in 2019. The service allows users to mix identifiable Ethereum cryptocurrency funds with others, thus obscuring the trail back to the funds original source. On August 8, 2022, the Treasury’s Office of Foreign Assets Control (OFAC) sanctioned Tornado Cash, making it illegal for United States citizens, residents, and companies to receive or send money through the service. OFAC claims that Tornado cash is responsible for laundering more than $7 billion in virtual currencies, including money believed to be stolen by North Korea and criminal groups.
As opposed to sanctioning people, organizations, or particular addresses associated with rogue regimes, OFAC has sanctioned the code of Tornado Cash itself, causing critics to claim that OFAC has exceeded its statutory authority .
In this podcast, experts discuss OFAC’s blacklisting of Tornado Cash, potential litigation from opponents, and the broader implications for financial privacy, national security, and free speech.
Featuring:
Paul Brigner, Head of U.S. Policy and Strategic Advocacy, Electric Coin Company.
Michael Mosier, General Counsel, Espresso Systems
Kevin Werbach, Professor of Legal Studies and Business Ethics at the Wharton School, University of Pennsylvania
Moderator: J.W. Verret, Associate Professor of Law, Antonin Scalia Law School, George Mason University
In the last few years, the Federal Energy Regulatory Commission (FERC) has emerged from relative obscurity to find itself squarely in the middle of many of today’s most contentious public policy fights. As the agency that regulates wholesale electricity and transmission rates, the Commission faces the tension between the rapid adoption of renewable generation sources and the reliability of the bulk power system. And as the agency that reviews applications to build natural gas pipelines and liquified natural gas export facilities, how should the Commission consider the European energy crisis? Given the “economic and political significance” of these tasks, how should the Commission carry out its mission in light of West Virginia v. EPA?
At a live Regulatory Transparency Project event, following remarks from FERC Commissioner James Danly, an expert panel discussed the present and future challenges facing energy reliability and regulation.
Featuring:
Michael Buschbacher, Counsel, Boyden Gray & Associates
Jennifer Chen, Senior Manager, Clean Energy
Jim Wedeking, Counsel, Sidley Austin LLP
[Moderator] Marc L. Spitzer, Steptoe & Johnson
Visit our website – https://www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
In the last few years, the Federal Energy Regulatory Commission (FERC) has emerged from relative obscurity to find itself squarely in the middle of many of today’s most contentious public policy fights. As the agency that regulates wholesale electricity and transmission rates, the Commission faces the tension between the rapid adoption of renewable generation sources and the reliability of the bulk power system. And as the agency that reviews applications to build natural gas pipelines and liquified natural gas export facilities, how should the Commission consider the European energy crisis? Given the “economic and political significance” of these tasks, how should the Commission carry out its mission in light of West Virginia v. EPA?
At a live Regulatory Transparency Project event, FERC Commissioner James Danly addressed the present and future challenges facing energy reliability and regulation. An expert panel including Michael Buschbacher, Jennifer Chen, Jim Wedeking, and moderator Marc Spitzer then followed the Commissioner’s remarks with a lively discussion.
Featuring:
James Danly, Commissioner, Federal Energy Regulatory Commission
Visit our website - https://www.RegProject.org - to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
The Goldwater Institute’s Christina Sandefur moderates a discussion with the Cato Institute’s director of health care policy Michael F. Cannon, on the role that the federal government plays in requiring prescriptions for medications. If you would like to read more from Cannon, see his and Jeffrey A. Singer’s white paper, Drug Reformation: End Government’s Power to Require Prescriptions.
Featuring:
Michael F. Cannon, Director of Health Policy Studies, Cato Institute
[Moderator] Christina Sandefur, Executive Vice President, Goldwater Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
One of the longest-standing environmental law challenges is how to define the scope of waters regulated under the Clean Water Act known as “waters of the United States” (WOTUS). After decades of regulatory uncertainty, the Supreme Court has again taken up a case that may provide clarity. On October 3rd, the Court will hear oral argument in Sackett v. EPA, the first case of this new term and the second time the case will be reviewed by the high court. Perhaps this time the Court will definitively determine what is a WOTUS. Will the Court definitively determine what is a WOTUS?
Join us for a discussion on this important case with Damien Schiff (arguing for petitioners), Tony Francois (represented petitioners in the Ninth Circuit), and William Snape (Director of the American University Washington College of Law’s Program on Environment and Energy Law). The panel will be moderated by Hunton Andrews Kurth partner Matt Leopold, who served previously as EPA general counsel and assisted in drafting the 2020 Navigable Waters Protection Rule defining WOTUS.
Featuring:
Tony Francois, Senior Attorney, Pacific Legal Foundation
Damien Schiff, Senior Attorney, Pacific Legal Foundation
Prof. William Snape, Director of Program on Environmental and Energy Law, Assistant Dean of Adjunct Faculty Affairs, and Fellow in Environmental Law, American University Washington College of Law
Moderator: Matt Leopold, Partner, Hunton Andrews Kurth
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Russia’s invasion of Ukraine shocked the world – and directed renewed attention to the global energy system. Suddenly, the topic of energy security rose to the forefront as consumers across the globe began to feel the impact of the conflict when filling their gas tanks and paying their electricity bills. As Europe struggles to disentangle itself from dependence upon Russian energy sources, the United States and others have directed renewed focus toward their supply chains for both hydrocarbon fuels and renewable power generation. Our panel of energy experts discuss these recent events and consider the legal and policy levers available to the United States and its allies to enhance their energy security.
Featuring:
Prof. James Coleman, Robert G. Storey Distinguished Faculty Fellow and Professor of Law, Southern Methodist University Dedman School of Law
George Fibbe, Partner, Baker Botts, Former Deputy General Counsel, Department of Energy
Moderator: Daniel G. West, Vice President, SCF Partners
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
As a condition of his vote for the Inflation Reduction Act, Sen. Joe Manchin demanded space for his own permitting-reform package in the latest spending bill. While his proposed legislation was ultimately pulled over objections to aspects tangential to permitting, interest in permitting reform remains strong. The target of many reformers’ ire is the current interpretation of the National Environmental Policy Act: a 1970 statute designed to ensure that the government gives adequate consideration to environmental impacts before embarking on major actions. While this has had significant benefits for environmental quality, the review process is often long, costly, and subject to aggressive litigation that often stretches for years. Is it time to rewrite portions of NEPA? And, if so, what should those reforms look like?
Featuring:
David Adelman, Harry Reasoner Regents Chair in Law, The University of Texas at Austin School of Law
James W. Coleman, Robert G. Storey Distinguished Faculty Fellow and Professor of Law, Southern Methodist University Dedman School of Law
[Moderator] Michael Buschbacher, Counsel, Boyden Gray & Associates PLLC
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
A private right of action, or the ability of individuals to bring lawsuits for violations of a statute, has been a major point of contention in debates over a potential federal data privacy law. This podcast featuring Andrew Kingman (Mariner Strategies), Jennifer Huddleston (NetChoice), and Keir Lamont (Future of Privacy Forum) will dive into the questions surrounding this debate. Is the litigation risk from a private right of action harmful to innovation and small businesses or is it necessary to redress individual concerns? What can policymakers and practitioners learn from state level privacy laws like Illinois’ Biometric Information Privacy Act (BIPA) and the California Privacy Rights Act (CPRA) about the impact of a private right of action?
Featuring:
Andrew Kingman, President, Mariner Strategies LLC
Keir Lamont, Senior Counsel, Future of Privacy Forum
[Moderator] Jennifer Huddleston, Policy Counsel, NetChoice
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
One of the most controversial and long-standing environmental issues deals with what waters are regulated under the Clean Water Act. For decades, the EPA and Army Corps of Engineers have struggled to define "waters of the United States" (WOTUS) and the Supreme Court has not been able to provide clarity in its previous WOTUS decisions. Now though, the U.S. Supreme Court's first case of the new term is Sackett v. EPA, which provides the Court another chance to provide some clarity. In this podcast discussion, the lead counsel for the Sacketts, Damien Schiff, and Georgetown University's William Buzbee, delve into the legal issues of the case and its implications.
Featuring:
William W. Buzbee, Professor of Law, Georgetown Law
Damien Schiff, Senior Attorney, Pacific Legal Foundation
[Moderator] Daren Bakst, Senior Research Fellow in Environmental Policy and Regulation, The Heritage Foundation
Visit our website - www.RegProject.org - to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Ashley Baker and Asheesh Agarwal discuss the FTC's Strategic Plan for 2022 - 2026, which sets out the FTC's priorities over the next five years. Ashley and Asheesh discuss goals that the FTC would like to achieve, their shift from the historically used consumer welfare standard to a public interest standard, and challenges to the FTC's assertion of jurisdiction to keep an eye on.
Featuring:
Ashley Baker, Director of Public Policy, Committee for Justice
Asheesh Agarwal, Consultant, American Edge Project and U.S. Chamber of Commerce
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
In this episode, Michael F. Cannon argues that the federal income tax exclusion of employer-sponsored health insurance is an "accident of history," and has had a significant impact on the American markets for health insurance, medical care, and on the U.S. political system. Read more from Michael Cannon in his article, End the Tax Exclusion for Employer-Sponsored Health Insurance.
Featuring:
Michael F. Cannon, Director of Health Policy Studies, Cato Institute
Visit our website - www.RegProject.org - to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
The US-EU Trans-Atlantic Data Privacy Framework, announced in March of this year, is a new agreement governing trans-Atlantic data flows between the United States (US) and the European Union (EU) – specifically data flows from EU countries to the U.S. that contain personal information of EU residents. The new framework is intended to replace the previous Privacy Shield Framework, which the EU Court of Justice found did not provide adequate protection of privacy, as required by the General Data Protection Regulation and other law.
In this podcast, experts discuss whether the new Trans-Atlantic Data Privacy Framework effectively addresses the concerns of the EU Court of Justice providing for a solid legal basis for future Trans-Atlantic data transfers.
Featuring:
Stewart Baker, Partner, Steptoe & Johnson LLP
Theodore Christakis, Professor of International and European Law, University Grenoble Alpes
Peter Swire, Elizabeth and Tommy Holder Chair, Scheller College of Business, Georgia Institute of Technology
[Moderator] Paul Rosenzweig, Professorial Lecturer in Law, The George Washington University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
The Supreme Court’s recent abortion decision in Dobbs v. Jackson Women’s Health Organization will no doubt have many ramifications. One of the more unusual questions is the impact that Dobbs might have on data privacy. It has long been the case, for example, that cell phone location data can be used to identify certain personal behavior patterns, such as routine attendance at church. Some are now concerned that location data may be used to identify pregnant women by the locations they visit – potentially exposing them to civil or criminal charges as the underlying substantive abortion law changes. Other women are deleting period tracking apps from their phones for much the same reason. In this podcast, experts explore and debate these issues.
Featuring:
Stewart Baker, Partner, Steptoe & Johnson LLP
Jane Bambauer, Dorothy H. and Lewis Rosenstiel Distinguished Professor of Law, The University of Arizona James E. Rogers College of Law
Danielle Citron, Jefferson Scholars Foundation Schenck Distinguished Professor in Law and Caddell and Chapman Professor of Law, University of Virginia School of Law
[Moderator] Paul Rosenzweig, Professorial Lecturer in Law, The George Washington University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
In the name of equality, some state and local governments seem to have implemented race-and-gender-based legal quotas in practice if not in name. Wen Fa, an attorney who represents plaintiffs challenging the legality of these laws and policies provides a litigation update on two of his latest cases: CFER v. Alameda County, and Raak Law v. Gast.
In CFER v. Alameda County, plaintiffs are Oakland-area taxpayers who allege that county set-asides for Minority Business Enterprises violate federal and California constitutional prohibitions on racial discrimination.
Meanwhile, in Raak Law v. Gast, the plaintiffs are prospective candidates for the Iowa Judicial Nominating Commission. They contend Iowa law establishes a gender quota by staggering the two commissioners' elections and requiring that of the two commissioners from each district, one be female and the other be male.
Listen for a Litigation Update on these two fascinating cases, as Wen Fa reviews the facts and law of these cases, as well as the status of each case.
Featuring:
Wen Fa, Senior Attorney, Pacific Legal Foundation
[Moderator] Dan Morenhoff, Executive Director, Equal Voting Rights Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Energy law expert, Professor James W. Coleman, shares his analysis of the factors causing high energy prices - including public policy on the federal, state, and local level - and suggests some policies that might alleviate high energy prices.
Featuring:
James W. Coleman, Robert G. Storey Distinguished Faculty Fellow and Professor of Law, Southern Methodist University Dedman School of Law
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
In May, the U.S. Fifth Circuit Court of Appeals vacated a decision of the Securities and Exchange Commission that hedge-fund manager George Jarkesy had committed securities fraud. The case, Jarkesy v. SEC, stuck down an important enforcement provision of Dodd-Frank and represents a potential strengthening of nondelegation and unitary executive principles. As a consequence, it could have far-reaching implications that go far beyond the securities laws.
The panel held that the SEC had violated the defendant’s 7th amendment right to a trial by jury because fraud is not a “public right” claim triable by administrative tribunal but a traditional claim that must be tried by a court. The panel also held that the law giving the SEC authority to choose between court trials and administrative trials of such claims constituted an unconstitutional delegation of legislative authority, in violation of the nondelegation doctrine. Finally, the court chipped away at the SEC’s independent status, holding that restrictions on removing administrative law judges only for cause infringed on the president’s vested authority to see that the laws be faithfully executed, in violation of the Constitution’s separation of powers.
What does Jarkesy mean for the future of administrative law? Was the Fifth Circuit following the principles laid down in recent Supreme Court precedent? Or has it struck out on its own, perhaps in an effort to spur the Supreme Court to further curtail the administrative state? The SEC has asked for en banc review. The decision creates an apparent split with the Ninth Circuit decision in Decker Coal v. Pehringer (2021) and could be headed to the Supreme Court.
Featuring:
Jonathan Adler, Johan Verheij Memorial Professor of Law and Director, Coleman P. Burke Center for Environmental Law, Case Western Reserve University School of Law
Mario Loyola, Senior Fellow, Competitive Enterprise Institute
[Moderator] Devin Watkins, Attorney, Competitive Enterprise Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
In the historic decision of West Virginia v. EPA, the Supreme Court held that the Clean Air Act doesn’t authorize EPA to force America’s electricity sector to switch to renewable sources. The Court invalidated the Obama-era Clean Power Plan, which would have limited the total allowable greenhouse gas emissions of each state’s utility sector under the banner of “performance standards” for power plants. That was the regulatory strategy the EPA had pursued for cutting emissions from electricity generation. Consequently, the decision closes the window on the most viable regulatory route for sweeping climate action by federal agencies without a clear congressional mandate, while raising the bar still higher for options such as NAAQS for greenhouse gases.
The decision’s linchpin was the Court’s holding that the Obama Administration’s novel interpretation of a 50-year old statutory provision could not be used to support the broad new powers that EPA had claimed for itself in the Clean Power Plan. Under the court’s “major question doctrine,” Congress must speak clearly to delegate “decisions of vast economic and political significance” to an agency. Together with Justice Neil Gorsuch, who in concurrence further elaborated on his view of non-delegation, the majority opinion by Chief Justice John Roberts signaled that the Court is likely to reject major regulatory innovations by federal agencies that are not based on clear statutory authority.
Featuring:
Daniel Farber, Sho Sato Professor of Law and Faculty Director, Center for Law, Energy, and the Environment, University of California, Berkeley
Adam Gustafson, Senior Counsel for Environmental and Regulatory Affairs, Boeing
Mario Loyola, Senior Fellow, Competitive Enterprise Institute
[Moderator] James Coleman, Robert G. Storey Distinguished Faculty Fellow and Professor of Law, Southern Methodist University Dedman School of Law
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
In the Executive Office of the President is a small office that most people outside the Beltway have never heard of. The Office of Information & Regulatory Affairs (OIRA) reviews agencies' draft regulations, public information requests, surveys, etc. Across administrations - both Republican and Democratic - it has served as a check on excessive administrative zeal. The Joe Biden administration has yet to nominate someone to head the office.
Susan Dudley and Paul Ray served as the presidentially appointed administrators of the office in the George W. Bush and Donald Trump administrations, respectively. They shared their perspectives on the importance of this "obscure but powerful" office, and what the lack of a confirmed administrator means for the executive branch and its agencies.
Featuring:
Susan Dudley, Director, GW Regulatory Studies Center & Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, George Washington University
Paul Ray, Director, Thomas A. Roe Institute for Economic Policy Studies, The Heritage Foundation
Visit our website - www.RegProject.org - to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
On November 15, 2021, President Biden signed the Infrastructure Investment and Jobs Act. On May 11, 2022, the White House released the Permitting Action Plan, to "accelerate and deliver infrastructure projects on time, on task, and on budget."
The infrastructure bill represents a major public investment in infrastructure development. And yet significant obstacles to infrastructure development remain. Does the infrastructure bill help overcome some of those obstacles? How does the Permitting Action Plan address those obstacles? How can the federal government work with states, localities, tribes and territories to overcome these challenges?
In this webinar, energy policy experts discussed these questions and more.
Featuring:
- Edward Boling, Partner, Perkins Coie LLP
- Alex Herrgott, President & CEO, The Permitting Institute
- [Moderator] Mario Loyola, Senior Fellow, Competitive Enterprise Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
In this episode, J. Kennerly Davis, Jr., former Deputy Attorney General for the Commonwealth of Virginia, discusses the historical origin of the Defense Production Act, the powers the Act gives to the president, and recent presidents' invocation of the Act in pursuit of public policy objectives.
Featuring:
- J. Kennerly Davis, Jr., Former Senior Attorney, Hunton Andrews Kurth LLP
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
The Biden administration has pledged to meet what it calls "the accelerating threat of climate change" with a wide-ranging campaign to discourage the production and use of fossil fuels in order to control the emission of carbon dioxide and other greenhouse gases said to be the principal cause of global warming. The White House has directed regulatory agencies and departments across the executive branch to "tackle the climate crisis." The administration has set a goal to eliminate carbon dioxide emissions from the electric power sector by 2035.
The Federal Energy Regulatory Commission, or FERC, is an independent regulatory agency whose enabling statutes include the Federal Power Act and the Natural Gas Act. FERC's statutory responsibilities include regulation of the transmission and wholesale sale of electricity in interstate commerce, and authorization of proposals for the construction and operation of interstate natural gas pipelines and storage facilities.
Doing its part to tackle the climate crisis, FERC has proposed a new policy that will greatly expand the scope of the climate-related environmental impact analysis required for proposed natural gas projects. Traditionally, such analysis has been limited to an evaluation of the emissions that would result directly from the construction and operation of the proposed project. Going forward, FERC is proposing that such analysis will also evaluate the emissions that would result indirectly from the upstream production and downstream use of the natural gas to be handled by the proposed project.
In other policy statements having to do with the electric sector, FERC has announced that it will consider proposals from entities it regulates to add into wholesale electricity prices any charges that are levied by state regulators on greenhouse gases emitted by the power plants producing the electricity.
Does FERC have the legal authority to implement these new climate-related policies and, by doing that, dramatically expand the scope of its regulatory activities? J. Kennerly Davis, Jr. and Bernard McNamee joined us for a probing, wide-ranging discussion of the statutes and case law that provide the answer to this vitally important question.
Featuring:
- J. Kennerly Davis, Jr., Former Senior Attorney, Hunton Andrews Kurth LLP; Former Deputy Attorney General for Virginia
- Bernard L. McNamee, Partner, McGuireWoods LLP; Former Commissioner, Federal Energy Regulatory Commission
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Senior officials in the Administration have expressed concern about cryptocurrencies being used for criminal activity and undermining the dollar as the global reserve currency. These concerns have been heightened with the Russian invasion of Ukraine, evasion of sanctions including North Korean sanctions, cyberattacks, and ransomware. Others contend that blockchain transactions are easier to trace than physical cash, and that the Administration's concerns are exaggerated and could stifle innovation. China has banned cryptocurrencies and developed its own central bank digital currency (CBDC). It appears that the digital yuan will be used by the Chinese government for surveillance purposes to closely monitor personal transactions and behavior. A number of other regimes, including Canada, have used the banking and monetary system to silence dissidents. Some say that dissidents and citizens in countries that have unstable fiat currencies have turned to bitcoin and other cryptocurrencies to escape the national currency and protect their rights; other say cryptocurrencies are used by criminals and terrorists.
This very timely panel discussed whether the US can develop policies on digital assets that both protect freedom and privacy and maintain our safety from bad actors, and what the trade-offs with the dollar's international role might be.
Featuring:
- Michele Korver, Head of Regulatory, a16z Crypto
- Kathy Kraninger, Vice President of Regulatory Affairs, Solidus Labs; Former Director, Consumer Financial Protection Bureau
- Norbert Michel, Vice President and Director, Center for Monetary and Financial Alternatives, Cato Institute
- Mick Mulvaney, Co-Chair, Actum LLC; Former Director, Office of Management and Budget
- [Moderator] Dina Ellis Rochkind, Counsel, Government Affairs and Strategy, Paul Hastings
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
In February 2019, then General Counsel of the Department of Transportation (DOT), Steven Bradbury, issued a memo later dubbed the "Bradbury Memo" that addressed concerns about civil enforcement abuse at the agency. Parts of the memo were subsequently made into binding DOT rules. DOT asserted that these rules were designed to protect the due process rights of those who were the subject of DOT enforcement actions, including a requirement that the agency disclose all exculpatory evidence to those targeted by civil enforcement and the prohibition of "fishing expedition" investigations without sufficient evidence to support a violation.
On April 2, 2021, DOT rescinded these rules without the opportunity for public comment. Thereafter Polyweave Packaging Inc., a company that had been issued a civil penalty order by DOT over alleged regulatory violations, filed suit against DOT claiming the agency violated its due process rights by revoking the Bradbury Memo rules.
The U.S. District Court for the Western District of Kentucky ruled in favor of DOT, the case has been appealed to the Sixth Circuit Court of Appeals and oral arguments were on May 5, 2022.
Featuring:
- Steven Bradbury, Attorney; Former General Counsel, Department of Transportation
- Sheng Li, Litigation Counsel, New Civil Liberties Alliance
- [Moderator] Beth Williams, Board Member, U.S. Privacy and Civil Liberties Oversight Board; former Assistant Attorney General, U.S. Department of Justice
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
On June 23, 2022, David A. Carrillo, Christina Sandefur, Robert F. Williams and moderator Braden Boucek joined us to debate the different purposes and rights guarantees within state constitutions and the federal constitution. What are the federalism implications of an increased focus on state constitutional rights, if that's really the trend? What does the map of states look like if some federal liberties roll back, and does the distribution depend on which rights roll back or expand. These topics and more were explored by this excellent panel of knowledgeable state constitutional law experts.
Featuring:
- David A. Carrillo, Lecturer in Residence and Executive Director, California Constitution Center, University of California, Berkeley, School of Law
- Christina Sandefur, Executive Vice President, Goldwater Institute
- Robert F. Williams, Distinguished Professor of Law and Director, Center for State Constitutional Studies, Rutgers University of School of Law
- [Moderator] Braden Boucek, Director of Litigation, Southeastern Legal Foundation
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Cryptocurrency. Decentralized finance. Nonfungible tokens. Once only experts on the cutting edge of financial services were familiar with these terms. Now, with the emergence of digital assets within the global financial system, crypto, DeFi, and NFTs are becoming part of the mainstream financial services lexicon.
The rapidly emerging crypto ecosystem faces uncertainty within a regulatory regime designed for very different institutions and securities. In response, on March 9, 2022, President Biden issued an executive order, “Ensuring Responsible Development of Digital Assets,” which ordered agencies to submit policy recommendations based upon multiple principles such as: providing consumer protection, ensuring U.S. financial system stability, mitigating systemic financial risk, responsibly developing digital assets, and examining the creation of a U.S. Central Bank Digital Currency (CBDC). Supporters of increased financial regulation over cryptocurrency see this as a necessity to provide security essential to ensuring financial stability and consumer protection within the digital asset space. Others view these federal regulatory efforts as a threat to future opportunities for economic innovation.
At a live Regulatory Transparency Project event, following remarks from SEC Commissioner Hester M. Peirce, an expert panel including Jerry Brito, Ryan Selkis, Todd Phillips, and moderator J.W. Verret discussed current and future efforts at regulation of cryptocurrency and its implications for innovation, financial stability, and consumer protection.
Featuring:
Jerry Brito, Executive Director, Coin Center
Todd Phillips, Director, Financial Regulation and Corporate Governance, Center for American Progress
Ryan Selkis, Co-Founder and CEO, Messari
[Moderator] Prof. J.W. Verret, Associate Professor of Law, Antonin Scalia Law School, George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Cryptocurrency. Decentralized finance. Nonfungible tokens. Once only experts on the cutting edge of financial services were familiar with these terms. Now, with the emergence of digital assets within the global financial system, crypto, DeFi, and NFTs are becoming part of the mainstream financial services lexicon.
The rapidly emerging crypto ecosystem faces uncertainty within a regulatory regime designed for very different institutions and securities. In response, on March 9, 2022, President Biden issued an executive order, “Ensuring Responsible Development of Digital Assets,” which ordered agencies to submit policy recommendations based upon multiple principles such as: providing consumer protection, ensuring U.S. financial system stability, mitigating systemic financial risk, responsibly developing digital assets, and examining the creation of a U.S. Central Bank Digital Currency (CBDC). Supporters of increased financial regulation over cryptocurrency see this as a necessity to provide security essential to ensuring financial stability and consumer protection within the digital asset space. Others view these federal regulatory efforts as a threat to future opportunities for economic innovation.
At a live Regulatory Transparency Project event, SEC Commissioner Hester M. Peirce addressed current and future efforts at regulation of cryptocurrency and its implications for innovation, financial stability, and consumer protection. An expert panel including Jerry Brito, Ryan Selkis, Todd Phillips, and moderator by J.W. Verret then followed the Commissioner’s remarks with a lively panel discussion.
Featuring:
Hon. Hester M. Peirce, Commissioner, United States Securities and Exchange Commission
[Introduction] Prof. J.W. Verret, Associate Professor of Law, Antonin Scalia Law School, George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
On May 5, the United States Department of Justice (DOJ) announced a new "Comprehensive Environmental Justice Strategy." One piece of this new strategy was an Interim Final Rule reintroducing the use of Supplemental Environmental Projects (SEPs) in environmental enforcement action settlements.
As defined by the Biden administration, SEPs are "local projects that defendants can agree to undertake as part of an enforcement case settlement to help rectify environmental violations." These projects were outlawed under the Trump DOJ due to concerns that their use expands DOJ discretionary authority beyond its statutory limits. The Biden administration, however, argues that "SEPs help to fulfill the goals of the underlying statutes being enforced and can provide important environmental and public health benefits to communities that have been harmed by environmental violations."
On June 15, 2022, three executive branch veterans with a range of views on the issue joined us for a virtual discussion on the return of SEPs.
Featuring:
- Michael Buschbacher, Counsel, Boyden Gray & Associates PLLC
- Justin A. Savage, Global Co-Lead, Environmental Team, Sidley Austin LLP
- [Moderator] Annie Donaldson Talley, Partner, Luther Strange and Associates
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
On June 7, 2022, the Regulatory Transparency Project hosted a live discussion on occupational licensing via Twitter Spaces.
Utah Governor Spencer J. Cox opened the program with remarks on licensing reforms his state has recently pursued, and an expert panel featuring Jon Gabriel, Scott Lincicome, Colin Mortimer, and moderator Shoshana Weissmann then broke down the Governor’s remarks and discussed the issue more broadly.
Featuring:
- Spencer J. Cox, Governor, State of Utah
- Jon Gabriel, Editor-in-Chief, Ricochet
- Scott Lincicome, Director, General Economics and the Herbert A. Stiefel Center for Trade Policy Studies, Cato Institute
- Colin Mortimer, Director, Center for New Liberalism
- [Moderator] Shoshana Weissmann, Senior Manager of Digital Media and Fellow, R Street Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
As the cryptocurrency industry grows, state and federal governments are considering how that industry should be regulated. The President has directed the Secretary of the Treasury to report soon on the issues involved. A draft bill that would regulate stablecoins has been released in the U.S. Senate. Meanwhile, states are competing with one another to adopt regulatory laws that may attract cryptocurrency firms to their welcoming, but taxing, arms striving for economic growth.
Will regulation be designed to avoid discouraging innovation in a highly creative environment? Fears have been expressed that unregulated cryptocurrency could theoretically present systemic risk, and consumers may need to be protected–particularly in light of the recent collapse of the Luna cryptocurrency and its related Terra stablecoin. Some believe that regulation may be an opportunity to include those presently unserved by the banking system. Complicating this already complicated picture may be rivalry among multiple federal agencies, including the banking regulators, the Securities and Exchange Commission, the Commodities Futures Trading Commission, and the Federal Trade Commission, each of which may make a case for potential authority over aspects of the cryptocurrency industry. Our panel of experts addressed these timely and controversial questions.
Featuring:
- Douglas Elliott, Partner, Oliver Wyaman
- Michael Piwowar, Executive Director, Milken Institute Center for Financial Markets
- Dawn Stump, Former Commissioner, U.S. Commodity Futures Trading Commission
- Thomas Vartanian, Executive Director, Financial Technology & Cybersecurity Center
- [Moderator] Paul N. Watkins, Senior Advisor, Patomak Global Partners
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
In this episode, Adam Thierer interviews Professor Daniel Crane regarding state restrictions on direct car sales and their implications for automobile markets, including the antitrust concerns they may raise.
Featuring:
- Daniel Crane, Frederick Paul Furth Sr. Professor of Law, University of Michigan Law School
- [Moderator] Adam Thierer, Senior Fellow, Mercatus Center, George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Eight years after he was first sworn in, Arizona Governor Doug Ducey will leave office in January 2023 due to the state's limit of two consecutive terms. In this episode, Governor Ducey joined tech policy experts Brent Skorup and Adam Thierer to discuss initiatives aimed at boosting innovation Arizona has launched during his time in office. Their conversation covered regulatory sandboxes, occupational licensing reform, autonomous vehicle policy, and much more.
This episode was co-sponsored by the Mercatus Center at George Mason University.
Featuring:
- Doug Ducey, Governor, State of Arizona
- Brent Skorup, Senior Fellow, Mercatus Center, George Mason University
- [Moderator] Adam Thierer, Senior Fellow, Mercatus Center, George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
In February 2022, the Catawba Nation of South Carolina voted to approve the first tribal digital economic zone in the United States. This "Catawba Digital Economic Zone" includes an independent regulatory framework and commercial code, which its organizers intend to utilize to attract financial technology firms to the Zone as online "ecorporations."
In this episode, Catawba Digital Economic Zone CEO Joseph McKinney joined tech policy expert Ryan Hagemann to discuss the Zone and its novel regulatory framework.
Featuring:
- Joseph McKinney, CEO, Catawba Digital Economic Zone
- [Moderator] Ryan Hagemann, Co-Director, IBM PolicyLab
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
In 2018, then-Assistant Attorney General Makan Delrahim announced with great fanfare the "New Madison Approach" to intellectual property and antitrust disputes, rejecting the application of antitrust law to licensing disputes involving Standards Essential Patents (SEPs) and announcing that SEP holders should be entitled to injunctive relief like any other patent holder. Many patent holders cheered this development, particularly after years of perceived weakening of their rights as patent holders. They celebrated this new policy as supportive of innovation and technology licensing. Others argued that this new approach would lead to hold-up abuses by SEP holders in licensing negotiations, or that hold-out behaviors by licensees were overstated. They argued that this would only spark additional costly litigation.
As the current administration continues to reevaluate its antitrust policies and rolls back some "New Madison" policies, an expert panel discussed the impact of these policies, including whether they did more to promote innovation or to spark unnecessary litigation, and examined upcoming issues in the areas of SEPs and Standards-Setting Organizations.
Featuring:
- Jay Jurata, Partner and Antitrust & Competition Practice Group Leader, Orrick, Herrington & Sutcliffe LLP
- Taylor Owings, Partner, Baker Botts L.L.P.
- [Moderator] Brian Pandya, Partner, Duane Morris LLP
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
On April 18, Judge Kathryn Kimball Mizelle of the United States District Court for the Middle District of Florida vacated the Centers for Disease Control's mask mandate for public transportation.
Health law and policy expert Joel Zinberg joined the podcast to break down the ruling and examine the strategy behind the Department of Justice's decision to appeal it without requesting a stay.
Featuring:
- Joel Zinberg, Senior Fellow, Competitive Enterprise Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Stablecoins are unique types of digital tokens that have emerged out of the cryptocurrency revolution and have taken center stage in the debate about crypto regulation. Tied to the value of an asset or fiat currency such as the dollar, stablecoins were initially created to ease the trade between different cryptocurrencies and crypto exchanges. Yet they have taken on innovative and beneficial new uses that both increase financial inclusion at home and provide vital assistance to those facing oppression and financial instability, as some argue that the situation in Ukraine demonstrates.
But as stablecoins gain prominence, concerns have arisen over risks they might pose to the financial system. Some, such as Senate Banking Committee Ranking Member Pat Toomey, have argued for light-touch regulation for stablecoin issuers that would simply require disclosure of reserves and redemption policies. Others have called for strict bank-like regulation on stablecoins with reserve requirements that specify the amount of assets stablecoin issuers must hold and backstop guarantee programs similar to deposit insurance. The President’s Working Group on Financial Markets of the Biden Administration recently recommended that federal laws should only allow stablecoins to be issued by "insured depository institutions" such as banks and savings associations. The Securities and Exchange Commission (SEC) is also sending signals that it considers stablecoins as well as other cryptocurrencies to be "securities," and will subject them to regulatory enforcement under securities laws, despite, as some argue, the lack of clear authority by Congress.
This webinar explored the potential of stablecoins as a payment instrument, the inefficiencies of the current payment system, and the appropriate level of regulation that allows for beneficial innovation in this sector.
Featuring:
- Paul Jossey, Principal Attorney, Jossey PLLC
- Timothy Massad, Consultant; Adjunct Professor of Law, Georgetown Law
- [Moderator] John Berlau, Senior Fellow & Director of Finance Policy, Competitive Enterprise Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Are state governors subject to the same separation of powers restrictions as the federal president?
Expanding on a Regulatory Transparency Project panel discussion on emergency executive power during the pandemic, this event featured experts engaging in a broader separation of powers discussion about the distinctions between the federal and state separation of powers doctrines, using California as an example.
In a conversation moderated by Braden Boucek, David. A. Carrillo, Luke A. Wake, and John C. Yoo explored those distinctions, examined how they affect the latitude and options state and federal executives have, and debated the extent to which federal separation of powers doctrines can or should be applied to the states through judicial interpretation.
Featuring:
- David A. Carrillo, Lecturer in Residence and Executive Director, California Constitution Center, University of California, Berkeley, School of Law
- Luke A. Wake, Attorney, Pacific Legal Foundation
- John C. Yoo, Emanuel S. Heller Professor of Law; Co-Faculty Director, Korea Law Center; and Director, Public Law & Policy Program, University of California, Berkeley, School of Law
- [Moderator] Braden Boucek, Director of Litigation, Southeastern Legal Foundation
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
With the Supreme Court about to hear two cases involving the use of race in admissions at Harvard and the University of North Carolina, what do Americans actually think about preferential treatment? Dr. Althea Nagai, Senior Research Fellow at the Center for Equal Opportunity (CEO), presented her analysis of recent data from the Pew Research Center on what Americans believe colleges should consider when deciding whom to admit. Her study focuses on the attitudes of some of the beneficiaries of affirmative action, based on a large sample of black and Hispanic respondents as well as Asians and whites. Joining Dr. Nagai on the panel discussion were Theodore Johnson, Director of the Fellows Program at the Brennan Center for Justice, and moderator Linda Chavez, CEO Chair.
Featuring:
- Theodore Johnson, Director, Fellows Program, Brennan Center for Justice
- Althea Nagai, Senior Research Fellow, Center for Equal Opportunity
- [Moderator] Linda Chavez, Chairman, Center for Equal Opportunity
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Experts Ian Adams and Ike Brannon join the podcast to break down recent proposals regarding forced access to railroads. Is concentration an issue within the rail industry? If so, would forced access solve the problem? And what implications would a forced access rule have for the rail industry, and for technological innovation more generally?
Read Ike's recent paper on the topic here: https://www.cato.org/regulation/spring-2022/switching-wrong-track
Featuring:
- Ian Adams, Executive Director, International Center for Law & Economics
- Ike Brannon, President, Capital Policy Analytics
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
In January 2021, the Department of Health and Human Services ("HHS") finalized its SUNSET Rule. Section 610 of the Regulatory Flexibility Act ("RFA") requires agencies to have a written plan to review their significant regulations every ten years to determine their impact on small entities (and to determine whether the regulations should be amended or rescinded based on the findings of the review). Because HHS found it was not reviewing all its significant regulations, it issued the SUNSET Rule to better incentivize review. Under the SUNSET Rule, all HHS regulations must be assessed every ten years to determine whether they are significant under the RFA and if they are, the review called for by the RFA must be performed. If the assessment or review of a regulation is not conducted every ten years, the regulation would expire.
Critics of the rule argue that committing HHS to reassessing the economic impacts of many of the department's existing regulations is a large undertaking and it establishes an extreme penalty for noncompliance. Last fall, HHS issued a notice of proposed rulemaking to rescind the SUNSET Rule, and reports suggest a final repeal may be near. This webinar discussed the SUNSET rule, the effort to repeal it, and possible future actions in this area.
Featuring:
- William Funk, Lewis & Clark Distinguished Professor of Law Emeritus, Lewis & Clark Law School
Jonah Hecht, Attorney, McGonigle; Former Deputy General Counsel, U.S. Department of Health and Human Services
[Moderator] Karen Harned, Executive Director, National Federation of Independent Small Business Legal Center
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
In March 2020, the COVID-19 pandemic was sweeping the country and governors throughout the nation were issuing declarations of emergency. What followed was a perhaps unprecedented period of emergency governance, wherein governors in many states asserted power to manage not only their state's economy, but significant portions of civil society, in response to the pandemic. The state of emergency continues in some states, with renewed restrictions still possible.
The Regulatory Transparency Project hosted a virtual discussion on Wednesday, March 16 featuring an expert panel debating whether states should be updating and reforming their emergency management statutes in light of our collective experience with emergency governance over the past 24 months. Braden Boucek of the Southeastern Legal Foundation moderated the discussion between David A. Carrillo of the U.C. Berkeley California Constitution Center and Luke A. Wake of the Pacific Legal Foundation.
Featuring:
- David Carrillo, Lecturer in Residence and Executive Director, California Constitution Center, University of California, Berkeley, School of Law
- Luke Wake, Attorney, Pacific Legal Foundation
- [Moderator] Braden Boucek, Director of Litigation, Southeastern Legal Foundation
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Data privacy and data security are tech policy concerns that resonate with many voters and policymakers. In the absence of federal data privacy legislation, some states have passed, and others are considering, their own legislation to deal with data privacy questions related to specific technologies including biometrics, among many others. While California had the first general data privacy law at a state level, Virginia and Colorado passed different laws last year. Now states ranging from Connecticut to Utah are considering data privacy laws often modeled after these two examples. What do these data privacy laws mean for consumers and companies, both large and small? What might the landscape of state data privacy laws look like after the 2022 legislative session?
Featuring:
- Daniel Castro, Vice President and Director, Center for Data Innovation, Information Technology and Innovation Foundation
- Keir Lamont, Senior Counsel, Future of Privacy Forum
- [Moderator] Jennifer Huddleston, Policy Counsel, NetChoice
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Faced with a limited supply of recently-approved COVID-19 treatments, both the State and City of New York have issued directives instructing physicians and providers on how to prioritize treatment. One of the factors to be considered is race. In Roberts v. Bassett, two lifelong New Yorkers challenge the government's race-based allocation of potentially lifesaving COVID-19 treatments. Wen Fa, an attorney who represents the plaintiffs, joined us to discuss the latest in the case.
Featuring:
- Wen Fa, Senior Attorney, Pacific Legal Foundation
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Social media has become a prominent way for lawmakers, public agencies, experts, and governments to communicate with the public. Meanwhile, a once-obscure provision in federal communications law — Section 230 of the Communications Decency Act — has become a political football because it provides liability protections to internet-based companies like Facebook and Twitter. Our guests, Kristian Stout, Brent Skorup, and moderator Adam Thierer, are legal experts who have written about the history of media law and Section 230. They joined us for a moderated discussion featuring audience Q&A, as Stout and Skorup debated how lawmakers and courts should approach future Section 230 issues, political speech, and free speech online.
Featuring:
- Brent Skorup, Senior Research Fellow, Mercatus Center, George Mason University
- Kristian Stout, Director of Innovation Policy, International Center for Law & Economics
- [Moderator] Adam Thierer, Senior Research Fellow, Mercatus Center, George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
"To better understand the challenges small businesses face and to offer recommendations," Institute for Justice's Andrew Meleta and Alex Montgomery "analyzed the codes of 20 large to mid-sized cities, interviewed entrepreneurs from across the country, and mapped out the real-world process of starting five common business types from the entrepreneur's perspective." They then compiled their findings in IJ's "Barriers to Business" report, which is available here: https://ij.org/report/barriers-to-business/.
In this episode, Meleta and Montgomery join the Goldwater Institute's Jon Riches to discuss the major takeaways from their report and how cities can better attract and support entrepreneurs.
Featuring:
- Andrew Meleta, Activism Associate, Institute for Justice
- Alex Montgomery, City Policy Associate, Institute for Justice
- [Moderator] Jon Riches, Director of National Litigation, Goldwater Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Dr. Oonagh McDonald’s latest book, “Cryptocurrencies: Money, Trust and Regulation,” discusses the nature of money, the introduction of the first cryptocurrency – Bitcoin – and the maturation of the space, how regulators have approached the burgeoning industry, and whether cryptocurrencies might ultimately be viable alternatives to “money” as we know it today. The Regulatory Transparency Project was pleased to welcome Dr. McDonald and Coin Center Executive Director Jerry Brito to discuss these important issues.
Featuring:
- Oonagh McDonald, Senior Adviser, Crito Capital
- [Moderator] Jerry Brito, Executive Director, Coin Center
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Ian Adams joined the podcast to break down the policy aspects of a recent Twitter spat between Elon Musk and California Insurance Commissioner Ricardo Lara. What are telematics, and how are they used by the auto insurance industry? What is California's Proposition 103? What lessons can this episode teach about policy regarding emerging technologies more generally?
Read Ian's recent piece on the topic here: https://www.insurancejournal.com/blogs/law-and-economics/2022/02/17/654839.htm
Featuring:
- Ian Adams, Executive Director, International Center for Law & Economics
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
In October 2020, Michael Cannon and Jeffrey Singer proposed ending the U.S. Food and Drug Administration's authority to decide which drugs are available only by prescription. Their solution: leaving the decision to the drugs' manufacturers. This Regulatory Transparency Project program featured Michael Cannon, former FDA official Joshua Sharfstein, and moderator Dan Troy discussing prescription drugs, nonprescription drugs, and who decides.
Featuring:
- Michael Cannon, Director of Health Policy Studies, Cato Institute
- Joshua Sharfstein, Vice Dean for Public Health Practice and Community Engagement, Bloomberg School of Public Health, Johns Hopkins University
- [Moderator] Dan Troy, Chief Business Officer, Chief Administrative Officer, and General Counsel, Valo
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
On January 26, the Tennessee State Supreme Court heard oral arguments in Shaw et. al. v. Metropolitan Government of Nashville and Davidson County, a case in which the plaintiffs are challenging a zoning provision that prevented them operating businesses out of their homes. The city argues that the provision is "rationally related to the legitimate goal of protecting the residential nature of neighborhoods," while the plaintiffs contend the provision violates their state constitutional rights to substantive due process and equal protection.
Paul Avelar and Braden Boucek, who are representing the plaintiffs in the case, joined the podcast to break down the case from their clients' point of view.
Featuring:
- Paul Avelar, Managing Attorney, Arizona Office, Institute for Justice
- [Moderator] Braden Boucek, Director of Litigation, Southeastern Legal Foundation
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
On February 2, 2022, Lawrence Gostin, David Hyman, and Jenin Younes joined the Federalist Society's Georgetown Law Student Chapter to debate COVID-19 vaccine mandates.
Featuring:
- Lawrence Gostin, University Professor, Founding Linda D. & Timothy J. O'Neill Professor of Global Health Law, Faculty Director of O'Neill Institute for National & Global Health Law, Georgetown University
- David Hyman, Scott K. Ginsburg Professor of Health Law & Policy, Georgetown University
- Jenin Younes, Litigation Counsel, New Civil Liberties Alliance
- [Moderator] Courtney Stone Mirski, Editor in Chief, Food and Drug Law Journal
- [Introduction] Elizabeth Henry, President, Federalist Society's Georgetown Law Student Chapter
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Title IX of the Education Amendments of 1972 supplemented Title VI of the Civil Rights Act of 1964 to include, in addition to barring discrimination on the ground of race, color, or national origin, sex as a protected class in federally funded education programs or activities. The purpose of enacting Title IX was to ensure that everyone, regardless of sex, would enjoy a discrimination-free educational experience.
In the years since their enactment, observers have accused colleges and universities of violating Titles VI and IX in various ways. Many Title IX concerns have involved single-sex, female-only programs, scholarships, awards, fellowships, camps, clubs, etc. Others have involved single-sex, male-only programs. And recently, programs or scholarships for BIPOC-only or people of color have invoked Title VI concerns. One such observer of these potential civil rights violations is professor emeritus of economics at the University of Michigan, Mark Perry.
Over the last three years, Professor Perry has identified more than 1,200 Title IX and Title VI alleged violations and has filed complaints with the Department of Education's Office for Civil Rights (OCR) against nearly 400 colleges and universities which have resulted in nearly 200 federal investigations and more than 100 resolutions, mostly in his favor.
However, after years of this work, Professor Perry announced recently that he has noticed what he describes as a "significant departure from past practices" in what OCR now requires of Title VI and Title IX complaints. Professor Perry joined Devon Westhill to provide an update on his civil rights advocacy and what he views as "troubling signs" at the Biden-Cardona-Lhamon OCR for a discrimination-free educational experience for all.
Featuring:
- Mark Perry, Senior Fellow, American Enterprise Institute
- [Moderator] Devon Westhill, President and General Counsel, Center for Equal Opportunity
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Experts Marc Scribner and Adam Thierer join us to provide an update on autonomous vehicle (AV) policy. Why has Congress been unable to pass significant AV legislation? How have the Department of Transportation and state governments filled that void? What are the best and worst examples of how governments should approach AVs?
Related Reading:
- "Congress' failure to enact an automated vehicle regulatory framework is an opportunity for states"
(https://reason.org/commentary/congress-failure-to-enact-an-automated-vehicle-regulatory-framework-is-an-opportunity-for-states/)
- "Challenges and Opportunities for Federal Automated Vehicle Policy"
(https://reason.org/policy-brief/challenges-and-opportunities-for-federal-automated-vehicle-policy/)
- "10 Best Practices For State Automated Vehicle Policy"
(https://reason.org/policy-brief/10-best-practices-for-state-automated-vehicle-policy/)
- "Elon Musk and the Coming Federal Showdown Over Driverless Vehicles"
(https://www.discoursemagazine.com/economics/2021/11/22/elon-musk-and-the-coming-federal-showdown-over-driverless-vehicles/)
Featuring:
- Marc Scribner, Senior Transportation Policy Analyst, Reason Foundation
- [Moderator] Adam Thierer, Senior Research Fellow, Mercatus Center, George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
On January 13, the Supreme Court stayed the Occupational Safety and Health Administration's (OSHA) COVID-19 vaccine-or-test mandate for large businesses, but allowed a vaccine mandate for staff at facilities receiving Medicare and Medicaid funding to go into effect. An expert panel joined us to break down these rulings' implications for administrative law, with a particular focus on what they might mean for the future of the non-delegation and major questions doctrines.
Featuring:
- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
- Ilan Wurman, Associate Professor of Law, Sandra Day O'Connor College of Law, Arizona State University
- [Moderator] Luke A. Wake, Attorney, Pacific Legal Foundation
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
In October 2020, India and South Africa filed a request at the World Trade Organization (WTO) to create an exemption from an international treaty known as TRIPS (Trade-Related aspects of Intellectual Property Rights) for technologies, drugs, and vaccines used to respond to the COVID-19 pandemic. If the WTO adopts the waiver, countries could refuse to issue and protect IP rights for those technologies.
Some argue that the waiver is a necessary measure that would give a boost to the global fight against COVID-19, but others contend it would do little to help defeat the current pandemic and could hinder future innovation. An expert panel joined us to discuss the proposed waiver and weigh the arguments on each side of the debate.
In October, members of RTP's Intellectual Property Working Group published a white paper on the same topic, which you can read here:
https://regproject.org/paper/covid-vaccine-ip-waiver-a-pathway-to-fewer-not-more-vaccines/
Featuring:
- Andrei Iancu, Partner, Irell & Manella LLP
- David Kappos, Partner, Cravath Swaine & Moore LLP
- Arti Rai, Elvin R. Latty Professor of Law, Duke University School of Law
- [Moderator] Saurabh Vishnubhakat, Professor of Law, Texas A&M University School of Law
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
The Supreme Court is now hearing the most closely watched environmental case in decades, which may decide the future of greenhouse gas regulation under the Clean Air Act. This case has already been the subject of an unprecedented Supreme Court stay that short-circuited the Obama administration's climate agenda and not one, but two, 7+ hour arguments before the D.C. Circuit. Jonathan Brightbill and Kevin Poloncarz, who argued the case before the D.C. Circuit, joined us to discuss what it means for the future of climate regulation and administrative law.
Under the Clean Air Act, the Environmental Protection Agency regulates greenhouse gas emissions from various sources including new cars and new industrial sources. But a large proportion of the country's greenhouse gas emissions come from existing sources, such as the nation's coal and natural gas power plants, which provide over half of American electricity.
In 2015, the Obama administration issued a regulation for existing fossil fuel power plants under Clean Air Act §111(d), which allows the EPA to “establish a procedure” for each state to adopt “standards of performance” for existing sources of air pollutants. The administration called this rule the "Clean Power Plan." It was controversial, in part, because it went beyond asking states to make their existing power plants run more efficiently. Instead, it went "beyond the fenceline" of the power plant to encourage non-fossil sources of electricity such as wind and solar power and shrink the fossil-fuel power sector.
The Clean Power Plan never went into effect because the Supreme Court stayed its implementation on February 9, 2016. The D.C. Circuit heard more than 7 hours of argument on the validity of the Clean Power Plan but never ruled on it because the Trump administration repealed it and replaced it with its own rule, which it called the "Affordable Clean Energy Rule," and was limited to promoting efficiency measures at existing fossil fuel plants. The D.C. Circuit then heard 9 more hours of argument on this new rule, before striking it down on January 19, 2021. The court held that EPA's authority was not so limited.
The Supreme Court granted certiorari to decide whether Clean Air Act §111(d) gives "the EPA authority not only to impose standards based on technology and methods that can be applied at and achieved by that existing source, but also allows the agency to develop industry-wide systems like cap-and-trade regimes." The case is an important sequel in the Court's lines of cases on how much deference executive agencies should receive to decide major questions of policy and whether Congress might authorize dramatic agency action from relatively obscure provisions—hiding an elephant in a mousehole.
Featuring:
- Jonathan Brightbill, Partner, Winston & Strawn LLP
- Kevin Poloncarz, Partner, Covington & Burling LLP
- [Moderator] James W. Coleman, Robert G. Storey Distinguished Faculty Fellow and Professor of Law, Southern Methodist University Dedman School of Law
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Health policy expert Jeff Stier joins the podcast to discuss all things concerning the regulation of e-cigarettes and vapes: How did the FDA get the authority to regulate tobacco in the first place? What is synthetic nicotine, and what might its developement demonstrate about the interplay between federal agencies and their statutory authority? What are the most recent FDA actions in this area, and what is likely to come next?
In June Jeff narrated an Explainer video on the same topic, which you can view here:
https://www.youtube.com/watch?v=B2_brl2u9g0
Featuring:
- Jeff Stier, Senior Fellow, Consumer Choice Center
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
The last few months have seen significant changes at the Federal Trade Commission. The new FTC has set an ambitious agenda that revives the agency, propelling it in directions we haven’t previously seen. The FTC is poised to engage in wide-ranging antitrust and consumer protection investigations, issue industry-wide rules, and blend antitrust and consumer missions for a better outcome.
Featuring:
Adam Cella, Attorney Advisor, Office of Hon. Christine Wilson, Federal Trade Commission
Debbie Feinstein, Partner and Chair, Global Antitrust, Arnold & Porter
Jessica Rich, Of Counsel, Kelley Drye; former Director, Bureau of Consumer Protection, Federal Trade Commission
[Moderator] Svetlana Gans, Former Chief of Staff, Federal Trade Commission
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
The FTC is undertaking an ambitious and historic effort to craft de novo competition and privacy rules that will impact the entire U.S. economy. While some have applauded FTC's efforts, others have questioned the FTC's statutory authority to craft such rules. This webinar featured a panel of experts discussing the agency's statutory authority, processes and procedures, and specific rules that may be in play.
Featuring:
- Corbin Barthold, Director of Appellate Litigation and Internet Policy Counsel, TechFreedom
- William Blumenthal, Partner, Sidley Austin LLP
- Andrew Stivers, Associate Director, NERA Economic Consulting
- [Moderator] Svetlana Gans, Vice President & Associate General Counsel, NCTA
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
On June 25, 2021, President Biden's newly appointed Housing Secretary Marcia Fudge proposed to rescind a Secretary Carson-era disparate impact rule designed to implement the Fair Housing Act. In its place, HUD would reinstate the 2013 Discriminatory Effect Standard because the 2013 rule "better states Fair Housing Act jurisprudence and is more consistent with the Fair Housing Act's remedial purposes." By the time notice and comment ended on August 24, 2021, over ten thousand public comments had been submitted.
Critics of Secretary Fudge's proposed rule, including Ranking Member Senator Pat Toomey, argue that the change not only flouts the Supreme Court's decision in Texas Department of Housing and Community Affairs v. Inclusive Communities but also ultimately hurt consumers. Proponents argue that the change will move the housing market towards greater equity. Our panel of experts with a diversity of views discussed the pros and cons on October 11, 2021.
Featuring:
- Paul Compton, Founding Partner, Compton Jones Dresher
- Morgan Williams, General Counsel, National Fair Housing Alliance
- [Moderator] Devon Westhill, President and General Counsel, Center for Equal Opportunity
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
In this episode, Professor David Hyman interviews Dr. Richard Williams about Dr. Williams' new book, "Fixing Food: An FDA Insider Unravels the Myths and Solutions."
A twenty-seven-year veteran of the FDA's Center for Food Safety and Nutrition, Dr. Williams questions the accuracy of more than thirty years of food labeling, along with consumer education on diet/disease relationships and failed attempts to get consumers to track intakes.
Featuring:
- Dr. Richard A. Williams, Former Associate Director for Social Sciences, FDA; Author, "Fixing Food: An FDA Insider Unravels the Myths and Solutions"
- [Moderator] David Hyman, Scott K. Ginsburg Professor of Health Law & Policy, Georgetown University Law Center
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Environmental, Social and Corporate Governance (ESG) investing is growing in popularity, especially after major investment firm BlackRock signaled support for what it called "ESG Integration," or the practice of incorporating material ESG information into investment and divestment decisions. However, since this strategy is relatively young, the short–and long–term merits and potential harm to investors are both unclear.
A distinguished panel joins us to discuss a new paper, titled "Corporate Collusion" and written by former U.S. Ambassador and White House Counsel C. Boyden Gray, and to offer their differing views on the legal issues involved, including ESG, ERISA requirements, fiduciary duty, and more.
Featuring:
- David J. Berger, Partner, Wilson Sonsini
- Hon. C. Boyden Gray, Founding Partner, Boyden Gray & Associates
- Hon. Hester Peirce, Commissioner, U.S. Securities and Exchange Commission
- Hon. Leo E. Strine, Jr., Of Counsel, Wachtell Lipton; former Chief Justice, Delaware Supreme Court
- [Moderator] Hon. Paul S. Atkins, Chief Executive Officer, Patomak Global Partners; former Commissioner, U.S. Securities and Exchange Commission
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
During the COVID-19 pandemic, federal and state governments relaxed rules that limit telemedicine—technology that enables people to access healthcare from their phones and/or computers—to allow more patients to receive care from the convenience and comfort of their homes. Now, as the pandemic wanes, there are significant debates over whether these changes should be made permanent. In this episode, the Goldwater Institute's Christina Sandefur and the Institute for Justice's Josh Windham explore the rationales behind telemedicine regulations and examine how reforms and lawsuits might transform how patients receive care.
Featuring:
- Josh Windham, Attorney, Institute for Justice
- [Moderator] Christina Sandefur, Executive Vice President, Goldwater Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Collectively the Department of Labor, Equal Employment Opportunity Commission, and the National Labor Relations Board play a pivotal role in almost every dimension of employment in the nation. This inaugural panel discusses recent developments in the regulatory regimes of each and grades their performance over the four years of the Trump Administration. Greg Jacob moderates the discussion and presses our speakers about the fairness and accuracy of their grades.
Featuring:
- David Fortney, Co-Founder, Fortney & Scott LLC, and former Chief Legal Officer, U.S. Department of Labor
- Leon Sequeira, Former Assistant Secretary of Labor for Policy, U.S. Department of Labor
- Glenn Taubman, Staff Attorney, National Right To Work Legal Defense Foundation
- [Moderator] Gregory Jacob, Partner, O'Melveny & Myers LLP, and former Counsel to Vice President Pence and Deputy Assistant to the President
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Drones are rapidly becoming part of our everyday lives, and society will soon need to grapple with profound issues related to property, privacy, and nuisance. While drones are aircraft, the laws governing aircraft may soon be challenged as drones operate closer to the ground and in airspace never before occupied by manmade flying objects. The unique flying capability of drones is what makes them so valuable and is what will challenge settled laws, individual rights, and liberties.
The editor and two of the co-authors of "Eyes to the Sky: Privacy and Commerce in the Age of the Drone" joined us for a panel discussion of these legal and policy issues and more.
Featuring:
- Matthew Feeney, Director, Project on Emerging Technologies, Cato Institute
- Brent Skorup, Senior Research Fellow, Mercatus Center, George Mason University
- Gregory S. Walden, Partner, Dentons
- [Moderator] Gregory McNeal, Professor of Law and Public Policy, Pepperdine University and Co-Founder, AirMap
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Protecting and preserving competition are the key objectives of U.S. antitrust laws, which are all phrased as prohibitions: on agreements "in restraint of trade," of mergers and acquisitions where the effect "may be substantially to lessen competition, or to tend to create a monopoly," and on "unfair methods of competition." In a July 2021 Executive Order, the Biden Administration directed agencies to pursue 72 specific initiatives to tackle what are seen as our most pressing competition problems. Will these initiatives enhance the role of competition, or are they instead initiatives that would replace the outcomes of competitive markets with regulatory requirements? Both views have strong champions and well-articulated views. A distinguished panel joined us to lay out the arguments and implications of these important policy choices.
Featuring:
- Neil Averitt, Opinion Columnist, FTC:Watch
- Howard Beales, Professor Emeritus of Strategic Management and Public Policy, School of Business, The George Washington University
- Robert Bork, Jr., President, Antitrust Education Project
- Ioana Marinescu, Associate Professor, School of Social Policy & Practice, University of Pennsylvania and Faculty Research Fellow, National Bureau of Economic Research
- [Moderator] Jane Luxton, Managing Partner - Washington, D.C., Lewis Brisbois Bisgaard & Smith LLP
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The Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) in 2012 determined that forearm stabilizing braces for firearms serve a legitimate function and do not automatically subject a firearm to the strict requirements of the National Firearms Act of 1934. In December 2020, however, the BATFE proposed new regulations that could subject almost all firearms with forearm stabilizing braces to the NFA. On August 31, 2021, an expert panel joined us for a discussion on the proposed rule and how it fits into wider debates over agency rulemaking on controversial issues.
Featuring:
- Michael D. Faucette, Associate, Wiley Rein
- Paul Helmke, Professor of Practice and Director, Civic Leaders Center, Paul H. O'Neill School of Public and Environmental Affairs, Indiana University
- [Moderator] John Shu, Attorney and Legal Commentator
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
In June, President Biden revoked a Trump-era executive order that sought to ban TikTok and WeChat, and replaced it with a new executive order directing the government to review the security threats posed by foreign-controlled software applications. "The Federal Government should evaluate these threats through rigorous, evidence-based analysis," Biden's order dictated, "and should address any unacceptable or undue risks consistent with overall national security, foreign policy, and economic objectives, including the preservation and demonstration of America's core values and fundamental freedoms."
An expert panel joined us to break down the order and its implications for the apps it targets as well as for future relations between the United States and its foreign adversaries, such as China.
Featuring:
- Jennifer Hay, Senior Director for National Security Programs, DataRobot
- Jamil N. Jaffer, Founder & Executive Director, National Security Institute and Director, National Security Law & Policy Program and Assistant Professor of Law, Antonin Scalia Law School
- Margaret Peterlin, Adjunct Lecturer, The Bush School of Government & Public Service, Texas A&M University
- [Moderator] Matthew Feeney, Director, Project on Emerging Technologies, Cato Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
In September 2020, the Centers for Disease Control and Prevention (CDC) issued its first nationwide eviction moratorium. Since then, the CDC renewed the moratorium several times and most recently issued a new eviction moratorium that is substantially the same as prior versions, but its applicability depends on COVID-positivity rates in each jurisdiction. Under the CDC eviction moratorium orders, state courts are prohibited from proceeding with eviction proceedings if the renter asserts that he cannot pay his rent as a result of the pandemic. The private property owners are required to allow the non-paying renter to live rent-free, until the renter can pay at a later, unspecified date.
Following the CDC's first eviction moratorium, lawsuits were filed across the country. Many of them arguing that the federal government lacked the constitutional and statutory authority to stop state court eviction proceedings. As federal courts declared the CDC eviction moratorium unconstitutional and illegal, housing advocates rallied around the eviction moratorium in an effort to keep renters housed in their rental properties. And both sides – the private property owners and renters – all sought relief that never came from Congress and state legislatures. Many questions remain. In this virtual event, top experts dove deep into the CDC eviction moratorium, the legal issues, and the relief sought by both landlords and renters.
Featuring:
- Lawrence Gostin, University Professor, Founding Linda D. & Timothy J. O'Neill Professor of Global Health Law, Faculty Director of O'Neill Institute for National & Global Health Law, Georgetown University; Director, World Health Organization Collaborating Center on Public Health Law & Human Rights
- Luke Wake, Attorney, Pacific Legal Foundation
- [Moderator] Kimberly Hermann, General Counsel, Southeastern Legal Foundation
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The decision in United States v. Arthrex was extremely fractured, with a mix of majority, concurring, and dissenting opinions that cut across traditional jurisprudential divisions on the Supreme Court. Although the split majority held that the appointment of the Administrative Patent Judges at the Patent Trial & Appeal Board (PTAB) violates the Appointments Clause, the Court ultimately remedied this constitutional violation by revising the America Invents Act to give the Director of the U.S. Patent & Trademark Office (USPTO) more direct review and control over the decisions reached by the PTAB concerning the validity of patents. Although this makes the PTAB decision-making process at the USPTO more like the adjudicatory processes at other agencies, in which agency heads have direct oversight and control over their administrative law judges, it raises fundamental questions about the PTAB process created by Congress, which was supposed to consist of solely legal analyses of the statutory conditions for patentability, free from political influence.
Some have criticized the PTAB's operations for significant due process problems and other "shenanigans," but others have defended the PTAB as serving an important function as a corrective mechanism for mistakenly-issued patents that undermine the efficient operation of the innovation economy. This panel of experts discussed Arthrex and the ultimate effects that it may have in patent law, administrative law, and the innovation economy.
Featuring:
- Gary Lawson, Philip S. Beck Professor of Law, Boston University School of Law
- Kristen Osenga, Austin E. Owen Research Scholar & Professor of Law, University of Richmond School of Law
- Jonathan Stroud, Chief IP Counsel, Unified Patents
- [Moderator] Jennifer Mascott, Assistant Professor of Law and Co-Executive Director, C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School
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On June 21, 2021, the Court of Appeals for the Ninth Circuit ruled a shareholder-plaintiff had standing to sue California's Secretary of State. Creighton Meland, a shareholder at OSI Systems, Inc., sued alleging that Senate Bill 826, which was signed into law in 2018, violates the Fourteenth Amendment because it requires corporations to elect a sliding scale quota of women to corporate board member seats. The District Court ruled Meland had no standing because SB 826 governed corporations, not shareholders, and at the time of Meland's suit OSI was in compliance so any controversy was moot.
The Ninth Circuit disagreed, allowing Meland's suit to go forward by finding that the practical effect of SB 826 was to govern shareholders and direct them to vote on the basis of gender to avoid the imposition of fines or penalties for noncompliance. The court further held that Meland's suit alleged a direct harm and did not rely on prudential standing since he alleged personal harm rather than injury to the corporate entity.
Here to discuss the merits of the underlying law and the likely next steps in the current litigation are Professor Ann Ravel of Berkeley Law, a former Commissioner and Chair at the Federal Election Commission, who helped negotiate a $310 million settlement against Google resulting in the creation of a corporate-level diversity, equity, and inclusion initiative, and Anastasia P. Boden, an attorney in Pacific Legal Foundation's Economic Liberty Project and lead counsel in the Meland v. Weber litigation. Our speakers are joined by moderator Megan Brown, a Partner at Wiley Rein LLP.
Featuring:
- Anastasia P. Boden, Senior Attorney, Pacific Legal Foundation
- Ann Ravel, Lecturer, Berkeley Law and Former Commissioner and Chair, Federal Election Commission
- [Moderator] Megan Brown, Partner, Wiley Rein LLP
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In June, President Biden signed into law a bill that repealed changes to Environmental Protection Agency methane emissions regulations made by the Trump administration. In this episode, Professor Jonathan Adler joins the podcast to provide context to this development and to discuss the underlying legal and environmental issues at play.
Featuring:
- Jonathan H. Adler, Johan Verheij Memorial Professor of Law and Director, Coleman P. Burke Center for Environmental Law, Case Western Reserve University School of Law
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"A Dubious Expediency: How Race Preferences Damage Higher Education" is a collection of eight essays written by experts in the field examining and analyzing the impact of racial diversity preferences and identity politics in American colleges and universities. The book's title comes from a 1976 California Supreme Court opinion in Bakke v. UC Regents authored by Justice Stanley Mosk, who wrote: "To uphold the [argument for race-preferential admissions] would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality." In the book, the authors take up the question of race-based preferences in higher education, arguing that mounting empirical evidence shows race-based solutions cause long term harm both to intended beneficiaries and to society as a whole.
Featuring:
- Gail Heriot, Professor of Law, University of San Diego School of Law
- Maimon Schwarzschild, Professor of Law, University of San Diego School of Law
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The Congressional Review Act (CRA) was used in 2017 to overturn 15 rules issued near the end of the Obama administration. The shift in political control in the White House and Congress this year set the stage for a possible repeat with respect to Trump administration rules. The CRA's period for expedited congressional procedures (free of the Senate filibuster) has now expired for late Trump era regulations, and Congress overturned only three such rules. On June 24, Congress finished action to repeal the EEOC conciliation rule and the OCC (Comptroller) true lender rule, and it took final action to repeal the EPA methane rule the following day. President Biden has since signed all three resolutions, making them law.
This latest cycle of CRA actions merit general exploration as well as consideration of the specific rules at issue. What process did Congress use to disapprove the three rules? Why did it use the CRA relatively sparingly this year, and what will the impact be of the three disapprovals? The answers to the last two questions are arguably related. When Congress uses the CRA to repeal federal regulations, the respective agencies are automatically barred from issuing another rule that is "substantially the same" as the one disapproved without new statutory authorization. Though there is no court ruling on what the CRA's anti-circumvention clause means, the resulting uncertainty may have skewed the CRA's use in interesting ways.
In this live podcast, Todd Gaziano and Professor Jonathan Adler discuss the CRA, how it has been used, and the ramifications of its use on the three rules this year and on future federal regulations.
Featuring:
- Todd F. Gaziano, Chief of Legal Policy and Strategic Research and Director, Center for the Separation of Powers, Pacific Legal Foundation
- Jonathan H. Adler, Johan Verheij Memorial Professor of Law, Director of the Center for Business Law & Regulation, Case Western Reserve University School of Law
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The antitrust agencies' approach to vertical mergers has been the subject of significant debate — with potential changes still on the horizon. Last summer, the Department of Justice and the Federal Trade Commission issued long-awaited Vertical Merger Guidelines, the first update since 1984. The FTC's challenge to the Illumina/Grail merger — which sits at the intersection of healthcare and developing technology issues — is currently scheduled to begin an administrative trial next month. This would mark the first vertical merger litigation under the new Vertical Merger Guidelines, and one of the first since the DOJ's loss in AT&T/Time Warner. Our panel of experts discuss the recent developments in the vertical merger space, the theories at issue in the Illumina/Grail case, and implications for enforcement activity over the coming months and years.
Featuring:
- Steve Cernak, Partner, Bona Law PC
- Michael Kades, Director, Markets and Competition Policy, Equitable Growth
- Bruce Kobayashi, Professor of Law, Antonin Scalia Law School, George Mason University
- Thomas Lambert, Wall Chair in Corporate Law and Governance and Professor of Law, University of Missouri School of Law
- Taylor Owings, Partner, Baker Botts L.L.P.
- [Moderator] Elyse Dorsey, Adjunct Professor, Antonin Scalia Law School, George Mason University
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Motivated in part by Congress's failure to modernize immigration policy in the United States, Presidents in recent years have turned to administrative law and the regulatory process to make major immigration policy. The Obama Administration's DACA and DAPA immigration policies come immediately to mind. So does the Trump Administration's attempted rescission of DACA, among other regulatory or executive branch actions such as the travel ban, regulation of "sanctuary" cities, and major adjudicative and rulemaking policy changes to asylum and related relief.
Now that regulation is the primary means for immigration lawmaking, scholars, judges, and government officials have begun debating the proper regulatory processes for promulgating major immigration policy. In her book Beyond Deportation, for example, Professor Shoba Sivaprasad Wadhia has examined the value of rulemaking over agency guidance for major immigration policy and related relief. In a recent coauthored Duke Law Journal article, Professor Christopher Walker has joined Professor Wadhia to argue that the Biden Administration should shift the immigration policymaking default from administrative adjudication to notice-and-comment rulemaking (and not seek Chevron deference in immigration adjudication).
In this episode, an expert panel explores these arguments regarding the appropriate regulatory process for immigration policymaking and how the Biden Administration (and the federal courts) have already started to take up this call to action. Professors Wadhia and Walker are joined by Professors Susan Dudley and Richard Pierce, both of whom have deep expertise in administrative law and regulatory process.
Featuring:
- Richard Pierce, Lyle T. Alverson Professor of Law, George Washington University Law School
- Shoba Sivaprasad Wadhia, Associate Dean for Diversity, Equity, and Inclusion, Samuel Weiss Faculty Scholar and Clinical Professor of Law, and Director, Center for Immigrants' Rights Clinic, The Pennsylvania State University
- Christopher Walker, Professor of Law, Moritz College of Law, The Ohio State University
- [Moderator] Susan Dudley, Director, GW Regulatory Studies Center & Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, George Washington University
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The Supreme Court issued its decision in Cedar Point Nursery v. Hassid on June 23, 2021, holding 6-3 that a California regulation allowing California union organizers entry onto the private property of California growers constituted an uncompensated per se physical taking in violation of the Fifth and Fourteenth Amendments. The Ninth Circuit’s decision upholding the regulation was reversed and the case was remanded.
In this episode, attorney Wen Fa analyzes the decision and its implications.
Featuring:
Wen Fa, Attorney, Pacific Legal Foundation
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This episode features a panel discussion on Critical Race Theory, the 1619 Project and the current debates over how best to teach American history. Linda Chavez, Chairman of the Center for Equal Opportunity moderates the program and is joined by Peter Wood, President of the National Association of Scholars and author of 1620: A Critical Response to the 1619 Project, and John Agresto, former President of St. John’s College in Santa Fe.
Featuring:
- John Agresto, Former President, St. John's College
- Peter Wood, President, National Association of Scholars
- [Moderator] Linda Chavez, Chairman, Center for Equal Opportunity
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In May 2021, Rep. Diana Harshbarger (R-Tenneessee) introduced the "Freedom to Work Act," a bill that would utilize the federal government to reduce occupational licensing requirements. In this episode, the Congresswoman joins Shoshana Weissmann to discuss the bill and the most prevalent arguments for and against its passage.
Featuring:
- Rep. Diana Harshbarger, United States Representative, Tennessee
- [Moderator] Shoshana Weissmann, Senior Manager of Digital Media and Fellow, R Street Institute
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In recent years, a number of regulatory agencies have increasingly utilized enforcement actions rather than formal rulemaking to achieve desired policy outcomes. Critics argue that this "regulation by enforcement" raises legal concerns involving fair notice, the rule of law, and the Administrative Procedure Act. One prominent example of this phenomenon is the regulation of the cryptocurrency industry, where explosive innovation and growth have left many players appealing for clear rules of the road, rather than unpredictable enforcement actions carried out by a variety of federal agencies, including the Securities and Exchange Commission (SEC), the Commodity Futures Trading Commission (CFTC), and the Financial Crimes Enforcement Network (FinCEN).
While the SEC has declared that Bitcoin and Ether, the two largest cryptocurrencies, are not securities, the agency has increasingly brought lawsuits arguing that other coins must be registered as securities, relying on New Deal-era statutes and the Supreme Court's 1946 Howey test. Most notably, the SEC recently filed suit against Ripple Labs claiming that XRP, the popular cryptocurrency Ripple launched almost a decade ago, is an unregistered securities offering.
In this live podcast, an expert panel discusses SEC v. Ripple Labs, the broader cryptocurrency regulatory landscape, and potential legislative and regulatory reforms.
Featuring:
- John Berlau, Senior Fellow, Competitive Enterprise Institute
- John Deaton, Managing Partner, Deaton Law Firm
- Carol Goforth, University Professor and Clayton N. Little Professor of Law, University of Arkansas School of Law
- Roslyn Layton, Founder, China Tech Threat; Visiting Researcher, Aalborg University Center for Communication, Media, and Information Technologies; Senior Contributor, Forbes
- [Moderator] Curt Levey, President, Committee for Justice
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Federal and state government authority to mandate automobile manufacturers and consumers switch to electric cars is one of the most contentious legal and policy debates of the last two decades.
The Biden Administration has proposed to rescind two actions of the Trump Administration — EPA's withdrawal of a Clean Air Act waiver of preemption, and a Department of Transportation preemption regulation — that together attempt to establish one preemptive, national standard for automobile fuel economy and greenhouse gas emissions by the NHTSA and EPA and, as a consequence, prohibit California from adopting or enforcing motor vehicle greenhouse gas emissions or zero-emitting vehicle requirements for motor vehicles under state law.
In this live podcast, a panel of lawyers involved in the litigation discuss the legal and policy issues presented by these proposals.
Featuring:
- Jonathan Brightbill, Partner, Winston & Strawn LLP
- Sean H. Donahue, Partner, Donahue, Goldberg & Weaver LLP
- Benjamin Flowers, Solicitor General, Ohio
- [Moderator] James Coleman, Professor of Law, Southern Methodist University Dedman School of Law
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Over the past decade or so, increasing attention has been paid to agency guidance, the role it serves, and whether it has begun to supplant legally binding regulation as a governing tool. To place more parameters around its use, President Trump issued Executive Order 13891. President Biden rescinded that order upon taking office, and agencies are in the process of unwinding actions taken to implement the order.
In this episode, experts conduct a lively discussion of agency guidance – what it is, how and why it is issued, pros and cons of current guidance practices, thoughts on reforms in E.O. 13891, and the potential future of guidance reform.
Featuring:
- Bridget Dooling, Research Professor, George Washington University Regulatory Studies Center
- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
- Paul Ray, Senior Advisor, Patomak Global Partners
- [Moderator] Daniel Flores, Senior Counsel, Committee on Oversight and Reform, U.S. House of Representatives
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The Biden administration had barely named a cabinet, let alone staffed the government, when it began taking cybersecurity hits from all directions. The Russian government was revealed to have carried out a sophisticated supply chain attack through SolarWinds. Then Chinese government hackers launched attacks through Microsoft Exchange, often using extremely irresponsible and promiscuous tactics. Then Russian ransomware gangs threatened a fuel pipeline to the East Coast and beef supplies nationwide.
And that's just the first six months. What has been the fallout from these events and how is the administration responding? The calls for regulation of critical infrastructure, of cryptocurrency, and for aggressive retaliation have never been louder. Which will have a long-term impact?
In this live podcast, Stewart Baker and Tatyana Bolton trade insights on this pressing topic.
Featuring:
- Stewart Baker, Partner, Steptoe & Johnson LLP
- Tatyana Bolton, Director, Cybersecurity and Emerging Threats, R Street Institute
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On June 10, the Kentucky Supreme Court heard a pair of cases to consider whether and to what extent the Commonwealth's legislature may set parameters on the Governor's exercise of emergency powers.
In March 2020, Kentucky Governor Andy Beshear declared a state of emergency related to the COVID-19 pandemic. Since then, he and other executive branch officials have issued executive orders, regulations, and other directives aimed at combatting the spread of the virus. On February 2 of this year, Kentucky's General Assembly enacted a series of bills — over Governor Beshear's vetoes — that amended the Commonwealth's emergency powers laws. Under those laws, executive emergency orders that restrict private entities like businesses and churches lapse automatically after 30 days unless extended with the agreement of the legislature. Without legislative action, the Governor's existing orders lapsed on March 4, 2021. The Governor maintains, however, that the new laws invade the executive's authority to respond to emergencies and that he may continue to enforce emergency orders.
Two lawsuits followed. First, Governor Beshear sued the leaders of Kentucky's legislature and the Attorney General and asked the court to declare that the new laws usurp his executive powers. Separately, Pacific Legal Foundation sued the Governor on behalf of three restaurant owners who challenge the Governor's authority to continue the enforcement of business restrictions after March 4.
The judges in each case issued temporary injunctions. In the Governor's case, a Franklin County judge suspended certain provisions of the new laws. In PLF's case, a Scott County judge ordered the Governor to cease enforcement of orders against PLF's clients. The order in the latter case has been put on hold, and both cases have been appealed. The Kentucky Supreme Court accepted "transfer" from the appellate court and ordered that the two cases be heard together.
Governor Beshear has announced the easing of restrictions, effective June 11. The parties dispute whether this latest directive from the Governor renders the case moot.
In this live podcast, Mitchel Denham (DBL Law) and Oliver Dunford (Pacific Legal Foundation) debate and discuss the implications of these cases.
Featuring:
- Mitchel Denham, Partner, DBL Law
- Oliver Dunford, Attorney, Pacific Legal Foundation
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With his new casebook, "Administrative Law Theory and Fundamentals: An Integrated Approach," Professor Ilan Wurman seeks to provide fresh thinking to the field of administrative law. In the casebook, Professor Wurman proposes a theory of administrative power that he feels explains constitutional text and structure, as well as historical and modern practice, more completely than competing accounts. He argues that there are "exclusive" powers that only Congress, the President, and the courts can respectively exercise, but also "nonexclusive" powers that can be exercised by more than one branch. With this theory of "nonexclusive powers" Professor Wurman seeks to help students and scholars of administrative law critically analyze administrative law concepts such as delegation, quasi-powers, judicial deference, agency adjudications, and the separation of powers more broadly.
In this episode, Professor Wurman and Professor Richard Epstein discuss the new casebook and its theory of administrative power.
Featuring:
- Ilan Wurman, Associate Professor of Law, Sandra Day O'Connor College of Law, Arizona State University
- [Moderator] Richard A. Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
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In this episode, Anastasia P. Boden interviews Daniel Greenberg about his new article, "Regulating Glamour: A Quantitative Analysis of the Health and Safety Training of Appearance Professionals." (https://repository.law.uic.edu/lawreview/vol54/iss1/2/)
Featuring:
- Daniel Greenberg, President, Advance Arkansas Institute
- [Moderator] Anastasia P. Boden, Attorney, Economic Liberty Project, Pacific Legal Foundation
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In a conversation moderated by Kimberly Hermann, Braden Boucek and Emily Hamilton discuss several proposed legislative reforms to land use restrictions.
Featuring:
- Braden Boucek, Director of Litigation, Southeastern Legal Foundation
- Emily Hamilton, Senior Research Fellow, Mercatus Center, George Mason University
- [Moderator] Kimberly Hermann, General Counsel, Southeastern Legal Foundation
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It is hard to find a discussion of artificial intelligence these days that does not include concerns about Artificial Intelligence (AI) systems' potential bias against racial minorities and other identity groups. Facial recognition, lending, and bail determinations are just a few of the domains in which this issue arises. Laws are being proposed and even enacted to address these concerns. But is this problem properly understood? If it's real, do we need new laws beyond those anti-discrimination laws that already govern human decision makers, hiring exams, and the like?
Unlike some humans, AI models don't have malevolent biases or an intention to discriminate. Are they superior to human decision-making in that sense? Nonetheless, it is well established that AI systems can have a disparate impact on various identity groups. Because AI learns by detecting correlations and other patterns in a real world dataset, are disparate impacts inevitable, short of requiring AI systems to produce proportionate results? Would prohibiting certain kinds of correlations degrade the accuracy of AI models? For example, in a bail determination system, would an AI model which learns that men are more likely to be repeat offenders produce less accurate results if it were prohibited from taking gender into account?
Featuring:
- Stewart A. Baker, Partner, Steptoe & Johnson LLP
- Nicholas Weaver, Researcher, International Computer Science Institute and Lecturer, UC Berkeley
- [Moderator] Curt Levey, President, Committee for Justice
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On April 22, 2021, the Federalist Society's George Mason Student Chapter, the Regulatory Transparency Project, and the Global Antitrust Institute cosponsored an event featuring professors Joshua D. Wright and John Yun discussing the future of the conservative approach to antitrust law.
Featuring:
- Joshua D. Wright, Executive Director, Global Antitrust Institute, Antonin Scalia Law School at George Mason University
- John Yun, Associate Professor of Law, Antonin Scalia Law School at George Mason University
- [Introduction] Sydney Dominguez, President, The Federalist Society's George Mason Student Chapter
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Ken Davis joined the podcast to discuss why and how President Biden's memo on Modernizing Regulatory Review could significantly alter the regulatory review process.
Featuring:
- J. Kennerly Davis, Jr., Former Senior Attorney, Hunton Andrews Kurth LLP
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India and South Africa have submitted a petition to the World Trade Organization seeking a waiver of all intellectual property rights under international treaties on drugs, vaccines, or other responses to the COVID-19 pandemic. This waiver petition has provoked an intense policy debate over the role of intellectual property in healthcare innovation.
On the one hand, advocates for the waiver argue that patents have been a blockade for patient access and created higher prices, especially in developing countries. On the other hand, opponents of the waiver maintain that there is no evidence that patents are blocking drug development or distribution for the COVID-19 pandemic. The opponents also maintain that patents made possible over the past several decades the R&D investments, the creation of technical know-how, and the commercial agreements that have been the launching pad for the unprecedented development of several vaccines and other medical treatments in less than a year.
This live podcast features experts in innovation policy on both sides of the issue debating the role of patents in medical care and how the United States should respond to the waiver petition.
Featuring:
- Richard Blaylock, Partner, Pillsbury Winthrop Shaw Pittman LLP
- Brian O'Shaughnessy, Partner, Dinsmore & Shohl LLP and Past President, Licensing Executives Society, USA & Canada
- Hans Sauer, Deputy General Counsel and Vice President for Intellectual Property, Biotechnology Industry Organization
- [Moderator] Paul R. Michel, Chief Judge (ret.), U.S. Court of Appeals for the Federal Circuit
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On April 22, 2021, the Supreme Court decided AMG Capital Management, LLC v. Federal Trade Commission. Writing for the unanimous Court, Justice Breyer explained how Section 13(b) of the Federal Trade Commission Act does not authorize the FTC to seek, or a court to award, monetary relief such as restitution or disgorgement.
A panel of experts will discuss the ruling and its implications.
Featuring:
- Alden Abbott, Senior Research Fellow, Mercatus Center, George Mason University
- Corbin Barthold, Director of Appellate Litigation and Internet Policy Counsel, TechFreedom
- Maureen Ohlhausen, Partner, Baker Botts LLP
- [Moderator] Asheesh Agarwal, Deputy General Counsel, TechFreedom
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Edward E. Bartlett and Linda Chavez join the podcast to discuss the future of Title IX implementation under the Biden administration, which could have significant ramifications on college campuses across the country.
Featuring:
- Edward E. Bartlett, President, SAVE
- [Moderator] Linda Chavez, Chairman, Center for Equal Opportunity
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The debate over “Big Tech” and antitrust has intensified. On one side are those who consider certain Big Tech companies monopolies that reduce competition and exploit their users’ data. On the other side are those who believe that competition in the technology market is flourishing, particularly when considering a worldwide market, and that Big Tech empowers its consumers; after all, many users never pay financially for social media use.
In addition to these economic considerations, Big Tech has raised a host of social and political concerns over speech, democracy, and power. Is Big Tech suppressing speech? Should it suppress more speech? Does it even matter if private companies “suppress speech”? Does Big Tech have too much control over our elections or none at all? What power does Big Tech wield over our lives, if any?
On April 15, 2021, the Federalist Society's Chicago Lawyers Chapter hosted a panel of antitrust experts to discuss these issues and more.
Featuring:
- Asheesh Agarwal, Deputy General Counsel, TechFreedom
- Jessica Melugin, Director, Center for Technology and Innovation, Competitive Enterprise Institute
- Hal Singer, Managing Director, Econ One Research
- [Moderator] Richard A. Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
- [Introduction] John Adams, Stakeholder, Eimer Stahl LLP
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Commercial drone technology advanced rapidly in the past decade, and companies like Walmart, Amazon, Verizon, CVS, and UPS are now actively testing drone services like home delivery, medical logistics, and infrastructure inspections. These drones fly in low-altitude airspace, however, which raises pressing questions about property rights, privacy, and federalism. Where does private property end and navigable airspace begin? What role will states and cities have, if any, in allowing or prohibiting drone operations?
In the 2018 FAA Reauthorization Act, Congress asked the GAO to study and report on the roles of federal, state, and local authorities in the regulation of drone operations. That GAO report was released in September 2020 and noted the complicated caselaw surrounding low-altitude airspace. Meanwhile, many states and cities are passing drone laws, including drone no-fly zones. Some recent state bills propose leasing airspace above public roads to drone companies. Many in the drone industry and at the FAA, however, dispute the authority of states to regulate this area.
In this live podcast, experts debate these issues and more.
Featuring:
- Diana Marina Cooper, Head of U.S. Policy, Hyundai Urban Air Mobility
- Brent Skorup, Senior Research Fellow, Mercatus Center, George Mason University
- [Moderator] Adam Thierer, Senior Research Fellow, Mercatus Center, George Mason University
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On Friday, April 16, 2021, the Federalist Society's Georgetown Student Chapter hosted a webinar featuring professors Gregg Bloche, Larry Gostin, David Hyman, and Timothy Westmoreland discussing the current state of healthcare policy in the United States.
Featuring:
- M. Gregg Bloche, Carmack Waterhouse Professor of Health Law, Policy, and Ethics, Georgetown University
- Lawrence Gostin, University Professor and Director, O'Neill Institute for National and Global Health Law, Georgetown University
- David A. Hyman, Scott K. Ginsburg Professor of Health Law & Policy, Georgetown University
- Timothy M. Westmoreland, Professor from Practice, Georgetown University
- [Moderator] Patrick Lyons, Co-President, The Federalist Society's Georgetown Student Chapter
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In June of 2017, then-Attorney General Jeff Sessions issued a memo prohibiting the Department of Justice from directing settlement payments to non-governmental third parties that are "neither victims nor parties to the lawsuits" when the Department is engaged in litigation. The memo halted a practice that was utilized by the Bush and Obama administrations and now may make a return under the Biden administration.
Some view these third-party payments in government litigation settlements as an unconstitutional encroachment on Congress's spending power that should remain proscribed, but some see them as a legitimate measure to advance policy goals, particularly when it comes to environmental enforcement.
On April 14, the Federalist Society's Regulatory Transparency Project and Practice Groups hosted a webinar featuring experts on both sides of the issue discussing the practice and whether it will – and should – be utilized once again by the new administration.
Featuring:
- Ryan Dean Newman, Former Acting Assistant Attorney General, Office of Legal Policy, United States Department of Justice
- Justin A. Savage, Global Co-Lead, Environmental Team, Sidley Austin LLP
- John Shu, Attorney and Legal Commentator
- [Moderator] Annie Donaldson Talley, Partner, Luther Strange and Associates
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
On March 31, 2021, the Supreme Court heard oral arguments in NCAA v. Alston, a case addressing a Ninth Circuit decision holding that the National Collegiate Athletic Association's eligibility rules regarding compensation of student-athletes violate federal antitrust law. The Court is expected to review the decision according to circuit splits and general antitrust principles.
Joshua Wright, a former commissioner at the Federal Trade Commission, joined us to discuss oral arguments and the potential implications of the case.
Featuring:
- Joshua D. Wright, Executive Director, Global Antitrust Institute, Antonin Scalia Law School, George Mason University
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In her landmark book, financial services doyenne Karen Petrou explains how, despite better intentions, Federal Reserve policies have been major drivers of economic inequality in America. Beginning with 2010 policies that widened the wealth gap, the Fed more than doubled down on its errors in 2020. Petrou, however, proposes a program of politically plausible changes in Fed policies to promote greater financial equality, economic growth, and financial stability, without requiring changes in legislation. In this live podcast, former Treasury Assistant Secretary Wayne Abernathy engages in a frank discussion with Petrou about her new book, the problems she identifies in Fed policies, and how she sees her proposals rising above partisanship to achieve the goals she sets out.
Featuring:
- Wayne A. Abernathy, Former Assistant Secretary for Financial Institutions, U.S. Department of the Treasury
- Karen Shaw Petrou, Managing Partner, Federal Financial Analytics, Inc.
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In Cedar Point Nursery v. Hassid, the Supreme Court will decide whether a California “Access Regulation” violates the Takings Clause of the Fifth Amendment. The Access Regulation allows union organizers to enter the private property of agricultural employers in the state for three hours per day, 120 days per year, for the purposes of soliciting employees to join the union.
Petitioners Cedar Point Nursery and Fowler Packing Company, Inc., are California agricultural employers subject to the Access Regulation. In 2015, union organizers came onto the property of Cedar Point Nursery, a strawberry plant harvester near the Oregon border. The same year, union organizers filed an unfair labor practices charge against Fowler Packing, a citrus and table grape grower, alleging that Fowler denied access to union organizers seeking to enter their property. Petitioners contend that the Access Regulation constitutes a per se taking by appropriating an easement for the benefit of third party union organizers. Petitioners add that, because there is no mechanism for providing just compensation to Petitioners, the Access Regulation violates the Takings Clause.
Respondents are members of the Agricultural Labor Relations Board. They argue that per se taking analysis is inappropriate because of time, place, and manner limitations contained in the Access Regulation. They urge the Court to analyze the Access Regulation under the multi-factor balancing test invoked in cases involving regulatory takings.
In 1979, a divided California Supreme Court rejected a takings claim brought by other California growers shortly after the Access Regulation went into effect. Petitioners in this case brought this case in federal court. A divided Ninth Circuit affirmed a district court’s decision rejecting Petitioners’ Fifth Amendment claim, and Petitioners’ petition for rehearing en banc was denied over the dissent of eight judges. The Supreme Court accepted the case in November 2020, and heard oral arguments on March 22, 2021.
Featuring:
Wen Fa, Attorney, Pacific Legal Foundation
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“Deepfakes” are one of the latest technologies to prompt debate about online media. Using Deepfake techniques, users can make realistic-looking fake media in which people say and/or or do things they never, in fact, said or did. Although artists, documentarians, filmmakers, and many others have used Deepfakes to produce creative, and potentially life-saving, content, Deepfakes can also be used for harm, including assaults on people’s dignity and political stability. The technology, like many other innovations before it, presents risks and opportunities.
Lawmakers and academics have proposed laws to mitigate such harms. How should lawmakers approach the abusive use of Deepfakes? Can lawmakers craft legislation that limits the worst uses of Deepfakes without hampering the creation of valuable and creative Deepfake media? In this live podcast, leading experts discuss these and other questions related to this emerging technology, using Matthew Feeney's new paper on the topic, "Deepfake Laws Risk Creating More Problems Than They Solve," as a jumping-off point.
Featuring:
Joshua Abbott, Executive Director, Center for Law, Science and Innovation, Sandra Day O'Connor College of Law
Bobby Chesney, James A. Baker III Chair in the Rule of Law and World Affairs and Associate Dean for Academic Affairs, University of Texas at Austin School of Law
Matthew Feeney, Director, Project on Emerging Technologies, Cato Institute
[Moderator] Kathryn Ciano Mauler, Product Counsel, Google
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The U.S. Supreme Court heard oral arguments in United States v. Arthrex Inc. on March 1, 2021. This case is an important one for the office of patent judges; at issue is whether, for purposes of the Appointments Clause, administrative patent judges of the U.S. Patent and Trademark Office are "principal officers," which require presidential appointment and Senate confirmation, or "inferior officers," which do not. Also at issue is whether, if they are principal officers, the lower court properly cured any Appointments Clause defects in the current statutory scheme.
Gregory Dolin and Dmitry Karshtedt joined us to review oral arguments, discuss the case, and offer their divergent views on the merits in a discussion moderated by Kristen Osenga.
Featuring:
Gregory Dolin, Associate Professor of Law, University of Baltimore School of Law
Dmitry Karshtedt, Associate Professor of Law, George Washington Law School
[Moderator] Kristen Osenga, Austin E. Owen Research Scholar & Professor of Law, University of Richmond School of Law
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Recent years have seen a dramatic shift in the way in which American consumers use and shop for financial products and make payments, especially the rapid growth of electronic payments and electronic disclosures. These developments have raised both new opportunities for consumer choice and benefits but also potential new consumer protection threats. At the same time, repeated economic and financial crises, such as the 2020 global COVID pandemic, have illuminated the tensions in the existing institutional framework and suggested a need for modernization to respond to these challenges.
To address these challenges, in 2020 Consumer Financial Protection Bureau Director Kathleen Kraninger formed the CFPB Taskforce on Federal Consumer Financial Law to review the existing consumer financial protection framework and to recommend reforms. On January 5, 2021, the Taskforce published its two-volume report (available here). In this live podcast, Taskforce Chair Todd Zywicki joins us for an overview of the Report, its findings, and recommendations. He is accompanied by David Silberman, former Deputy Director (acting) of the CFPB and moderator Brian Johnson, also former Deputy Director of the CFPB.
Featuring:
- David Silberman, Lecturer on Law, Harvard Law School
- Todd Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School
- [Moderator] Brian Johnson, Partner, Alston & Bird LLP
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The Federalist Society's Regulatory Transparency Project and Corporations, Securities & Antitrust Practice Group were pleased to host this fireside discussion between Mr. Bilal Sayyed, most-recently Director of the Federal Trade Commission's Office of Policy Planning, and Svetlana Gans, Vice President and Associate General Counsel at NCTA and former Chief of Staff at the FTC. Their conversation covered the current state of the FTC, the challenges facing the agency, and the path ahead in the new administration.
Featuring:
- Bilal Sayyed, Senior Adjunct Fellow, TechFreedom; formerly Director, Federal Trade Commission Office of Policy Planning
- [Moderator] Svetlana Gans, Vice President & Associate General Counsel, NCTA
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The Biden administration faces a variety of issues when it comes to China, from trade policy to aggression in the South China Sea. Not to be overlooked, however, is how the new administration will handle China's policies and practices regarding intellectual property.
In this live podcast, experts from across the political spectrum discuss the key considerations at play regarding China and intellectual property and debate the best path forward for the new administration.
Featuring:
- Mark Cohen, Director and Senior Fellow, Berkeley Center for Law and Technology, University of California at Berkeley
- Justin Hughes, Hon. William Matthew Byrne, Jr. Chair Professor of Law, Loyola Law School, Loyola Marymount University
- [Moderator] Brian O'Shaughnessy, Partner, Dinsmore & Shohl LLP
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In January, Twitter and Facebook removed President Trump and many of his followers' accounts while Google, Apple, and Amazon cut business ties with Twitter competitor Parler over alleged contract violations, crippling its business. Many on the right are incensed. Others see these actions as an example of polycentric checks-and-balances in the classical liberal tradition. Yet even among those who welcome the silence, many are troubled by Silicon Valley's aggressive actions. But if there is a problem, what is to be done? Between the First Amendment, the bitter partisan divide in Washington, and the need for some content moderation in widely-used social media, what are the realistic regulatory options for curbing Silicon Valley's influence on the national discourse? What are the potential downsides of some of these options?
Featuring:
- Neil Chilson, Senior Research Fellow for Technology and Innovation, Charles Koch Institute
- Billy Easley, Senior Policy Analyst for Technology and Innovation, Americans for Prosperity
- [Moderator] Stewart Baker, Partner, Steptoe & Johnson LLP
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Professor James W. Coleman joins the podcast to break down the regulatory dynamics of the rolling blackouts Texans have experienced this week.
What role did regulators play in this incident, and what lessons should policymakers pull from it? What is the Electric Reliability Council of Texas, also known as 'ERCOT'? And what are the implications of Texas Governor Greg Abbott's order to halt natural gas exports?
Featuring:
- James W. Coleman, Associate Professor of Law, Southern Methodist University Dedman School of Law
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Recently, Big Tech companies have come under fire from all sides for their content moderation decisions. Some argue Big Tech companies are not doing enough to stem the spread of harmful content and misinformation. Others contend Big Tech companies' selective approaches to moderation belies partisan preferences — silencing only certain voices and threatening to undermine democratic values. The recent actions by Big Tech companies regarding President Trump have brought these concerns to a head.
Many different solutions have been proposed during the uproar surrounding the debate. Among these options, some have posited that historical regulation of common carriers can provide a road map for appropriate and effective big tech regulation. Do the market positions of modern giants like Twitter and Facebook generate common-carrier obligations? Should they? Experts discuss these issues, exploring the relevant legal contours and the desirability of the proposed common carrier solution to curb Big Tech power, as well as other issues surrounding the debate.
Featuring:
- Richard Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
- Joshua Wright, Executive Director, Global Antitrust Institute, Antonin Scalia Law School, George Mason University
- [Moderator] Elyse Dorsey, Adjunct Professor, Antonin Scalia Law School, George Mason University
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Asheesh Agarwal and Ashley Baker join the podcast to discuss Senator Amy Klobuchar's recently-announced bill to amend antitrust law.
How would the bill adjust the definition of "exclusionary conduct"? What would it mean for the government's ability to seek civil fines for antitrust violations? And how does the bill fit into the larger conversation about antitrust law in Washington?
Featuring:
- Asheesh Agarwal, Deputy General Counsel, TechFreedom
- Ashley Baker, Director of Public Policy, Committee for Justice
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After living in relative obscurity since its passage in 1996, the Congressional Review Act caught the nation's attention in 2017 when a Republican-led Congress and newly-elected President Trump used it to overturn 14 "midnight" regulations issued at the end of the Obama administration. Some prominent Democratic lawmakers opposed the CRA's framework as well as its individual uses in 2017. Will roles be reversed in 2021 regarding Trump administration "midnight" regulations? Can they be completely reversed?
In this live podcast, experts review the overriding purposes of the CRA and do a deep dive into its technical elements, such as the law's expedited congressional procedures, the types of actions it covers, the number of votes needed to overturn an action, and the consequences of disapproval.
Featuring:
- Todd F. Gaziano, Chief of Legal Policy and Strategic Research & Director, Center for the Separation of Powers, Pacific Legal Foundation
- [Moderator] Susan Dudley, Director, GW Regulatory Studies Center & Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, George Washington University
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The Environmental Protection Agency recently finalized two new transparency-related rules. The stated purpose of the rule "Increasing Consistency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process" is "to codify procedural best practices for the preparation, development, presentation, and consideration of BCA in regulatory decision-making under the CAA." The rule "Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information" is intended to help shed light on the science used and disseminated by the agency. Both rules have garnered both praise and criticism, and there is significant confusion over what they would actually do. In this live podcast, subject-area experts discuss the rules and examine their likely real-world impact.
Featuring:
- Rachel Jones, Vice President, Energy and Resources Policy, National Association of Manufacturers
- Clint Woods, Policy Fellow for Regulations, Americans for Prosperity
- [Moderator] Daren Bakst, Senior Research Fellow, Heritage Foundation
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In several recent high-profile cases, banks have conditioned or denied financial services to disfavored industries after campaigns against those industries by advocacy groups. In late-November 2020, the Office of the Comptroller of the Currency responded with a rulemaking that, if adopted, would bar national banks from denying financial services to counterparties on the basis of the "personal beliefs" of management and would prohibit "broad categorical exclusions" of certain industries.
Some have hailed the rulemaking as an overdue counteroffensive against so-called "woke capitalism." Others worry that it would create a "Fairness Doctrine" for banks and question the potential unintended consequences of the rule for freedom of conscience and orderly bank supervision.
This live podcast explores the issues surrounding the politicization of financial services, including the OCC rulemaking and other recent initiatives. This is a subject on which reasonable minds across the political spectrum—from progressives and libertarians to conservatives—can and do disagree.
Featuring:
- John Berlau, Senior Fellow, Competitive Enterprise Institute
- Brian Knight, Director of Innovation and Governance and Senior Research Fellow, Mercatus Center, George Mason University
- [Moderator] C. Wallace DeWitt, Senior Counsel, Allen & Overy LLP
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On January 13, the Supreme Court heard oral arguments in AMG Capital Management v. FTC, a case that could define the scope of the FTC's remedial authority and explore the limits of textualism. The FTC Act authorizes the Commission to seek a "permanent injunction" in federal court to stop "unfair methods of competition" and "unfair or deceptive acts or practices." For many years, the FTC and most courts have interpreted "permanent injunction" to give the FTC the power to require defendants to return money to victims. The Seventh Circuit recently disagreed and held that the term "permanent injunction" does not encompass equitable monetary relief for past misconduct.
To cover the oral arguments, Asheesh Agarwal, Deputy General Counsel at TechFreedom and an alumnus of the FTC, moderated a distinguished panel featuring Alden Abbott, the FTC's General Counsel, and Corbin Barthold, TechFreedom's Director of Appellate Litigation.
Featuring:
- Alden Abbott, General Counsel, Federal Trade Commission
- Corbin Barthold, Director of Appellate Litigation, TechFreedom
- [Moderator] Asheesh Agarwal, Deputy General Counsel, TechFreedom
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The COVID-19 pandemic has caused significant changes in urban land use. Where possible, companies have shifted to partial or full remote work, leaving some office buildings to sit empty. Firms in the service industry have sought to move dining, working out, and other activities outdoors where possible. It remains to be seen whether some of all of these changes in behavior will be permanent. What role do policymakers have to play in facilitating efficient land use during this uncertain time?
Featuring:
- Yonah Freemark, Senior Research Associate, Urban Institute
- Emily Hamilton, Senior Research Fellow, Mercatus Center, George Mason University
- [Moderator] Luke Wake, Attorney, Pacific Legal Foundation
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Medical innovation has made modern life miraculous by historical standards, as demonstrated by the unprecedented medical response to the COVID-19 pandemic. What made this possible? What's the best way to ensure future innovation in the treatment of viruses like COVID-19, and of other diseases like hepatitis, diabetes, and cancer?
This live podcast explores the legal rules and institutions best-suited to promote the development and commercialization of new drugs and vaccines. One key question is whether to use a prize or patent system to incentivize drug development. Another is whether consumers pay twice for patented drugs developed using funding from the National Institutes of Health. Experts debate these questions and discuss the the legal, economic, and policy considerations at play for efforts to promote new medical innovation.
Featuring:
- David Hyman, Scott K. Ginsburg Professor of Health Law & Policy, Georgetown University
- Brian O'Shaughnessy, Partner, Dinsmore & Shohl LLP and Past President, Licensing Executives Society, USA & Canada
- [Moderator] Adam Mossoff, Professor of Law, Antonin Scalia Law School, George Mason University
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Drug prices are a pressing policy issue. On November 20, 2020, President Donald Trump announced two new rules aimed at reducing drug prices for Medicare beneficiaries. These rules use a system known as reference pricing, which ties the price the federal government pays for patented drugs and treatments to the prices other countries pay. These rules are set to take effect in January 2021. Meanwhile, legislation pending in the U.S. House of Representatives and supported by Speaker Nancy Pelosi would create an International Pricing Index.
These policies enjoy bipartisan support, but they also face bipartisan opposition. Some think the Trump rules do not go far enough, and others argue that reference pricing is bad policy regardless.
In this episode, two distinguished experts who have worked and written extensively on this issue, Prof. Adam Mossoff and Dr. Wendell Primus, join us for a discussion of reference pricing, current policy proposals, and future challenges.
Featuring:
- Adam Mossoff, Professor of Law, Antonin Scalia Law School, George Mason University
- Wendell Primus, Senior Policy Advisor on Budget and Health Issues, Office of Speaker Nancy Pelosi
- [Moderator] Dean Reuter, Vice President, General Counsel, and Director of Practice Groups, The Federalist Society
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In this episode, an expert panel looks at what the new year may bring regarding the hot topics of tech policy. Some key policy debates – such as antitrust and "Big Tech," online speech and Section 230, and the race to 5G – are likely to continue, but what other tech policy conversations may arise? And how might the approach to regulation of the new presidential administration and Congress impact innovation and the tech industry?
Featuring:
- Jennifer Huddleston, Director of Technology & Innovation Policy, American Action Forum
- Blake Reid, Clinical Professor, University of Colorado Law School
- [Moderator] Adam Thierer, Senior Research Fellow, Mercatus Center, George Mason University
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There are nearly 500,000 commercial drones registered in the United States, far exceeding recent FAA projections. Fields like photography, agriculture, and public safety have adopted drone services and there are a few programs for long-distance services – like utility line inspection, surveying, and home delivery – popping up around the country.
Despite the rapid maturation of the technology, mass-market services are still years away in the United States in part because of difficult legal and policy questions raised in a recent GAO report to Congress: Should state or federal aviation officials regulate low-altitude drone services and operations? How do regulators encourage a healthy drone services industry while protecting residents' property rights and privacy? Who will build and operate unmanned traffic management systems? This expert panel discussed these topics and more in a Lincoln Network Reboot Conversation co-sponsored by the Regulatory Transparency Project.
Featuring:
- Reggie Govan, Former Chief Counsel, Federal Aviation Administration
- Alexiaa Jordan, Innovation, Cyber, and National Security Analyst; Lincoln Network
- Brent Skorup, Senior Research Fellow, Mercatus Center, George Mason University
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How is insurance regulated in the United States? How are emerging technologies disrupting the industry? And what issues do policymakers face regarding privacy concerns in our era of big data?
Ian Adams joins the podcast to answer these questions and more.
Featuring:
- Ian Adams, Executive Director, International Center for Law & Economics
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Following the onset of the COVID-19 pandemic, the Trump administration waived or suspended enforcement of a number of regulations, such as regulations affecting telemedicine. Will the Biden administration continue existing waivers or suspensions as is or take a new tack on regulatory flexibility during the continuing pandemic?
Featuring:
- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
- Sally Katzen, Professor of Practice and Distinguished Scholar in Residence & Co-Director of the Legislative and Regulatory Process Clinic, New York University
- [Moderator] Daniel Flores, Senior Counsel, Committee on Oversight and Reform, U.S. House of Representatives
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When the FCC put forward its proposed repeal of the net neutrality rule, it received 22 million public comments, by far the largest number any agency has ever received in connection with a rulemaking. The overwhelming public reaction was probably a bit surprising to agency staff, regulatory lawyers, lobbyists, and others who work in the wonky world of regulatory policymaking, where getting a hundred or so comments is perceived as a very robust response rate. And the rule vaulted agency rulemaking into the public consciousness in a way that very seldom happens, with TV host John Oliver and others encouraging everyday Americans to file comments on the proposed rule.
Though the increased public awareness of the power of regulatory agencies is undoubtedly a good thing, what exactly is an agency supposed to do with 22 million public comments? Even discounting for fraudulent or computer-generated comments (of which the agency received millions), does the agency have any obligation to consider whether or not members of the public approve of its proposed action? Should it? And if it should, is counting comments an effective way of determining public sentiment? The law provides very few clear answers to these questions, and there’s a major disconnect between the views of the public (who tend to see the public comment process as a vote) and regulators (who view comments as valuable only if they provide technical information). This panel considers both the legal and policy issues surrounding the question of whether, and how, an agency should take account of public opinion as expressed in comments.
Featuring:
- Steven Balla, Associate Professor of Political Science, Public Policy and Public Administration, and International Affairs, George Washington University
- Reeve Bull, Research Director, Administrative Conference of the United States
- Michael Livermore, Edward F. Howrey Professor of Law, University of Virginia
- [Moderator] Susan Dudley, Director, GW Regulatory Studies Center & Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, The George Washington University
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Any views expressed by the speakers are those of the speakers in their personal capacities. They do not necessarily reflect the positions of their affiliated organizations. In Mr. Bull’s case, he is speaking exclusively in his personal capacity and not as an employee of the Administrative Conference.
In this episode, Brent Skorup discusses the current state of drone technology, the history of airspace and drone regulations in the United States, and his new paper, "Drone Technology, Airspace Design, and Aerial Law in States and Cities," published by the Mercatus Center.
The paper is available here: https://www.mercatus.org/publications/technology-and-innovation/drone-technology-airspace-design-and-aerial-law-states-and-0.
Featuring:
- Brent Skorup, Senior Research Fellow, Mercatus Center, George Mason University
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COVID-19 has presented unique challenges for state lawmakers as they attempt to address public health and economic concerns. The crisis has also raised significant questions about whether states should reform existing regulatory regimes, and about the propriety of adding further regulatory burdens during an ongoing pandemic.
In this live podcast, Brian Kabateck, Luke Wake, and Clark Neily address vital questions raised by the virus, including how states should balance public health and economic concerns, whether states should change their enforcement priorities during the crisis, and whether this is the right time for states to liberalize economic regulations more generally. The discussion is centered around several proposals from the Regulatory Transparency Project's State & Local Working Group, which recently published a white paper entitled "Ten Reforms to Spur Coronavirus Recovery."
Featuring:
- Brian Kabateck, Founding and Managing Partner, Kabateck LLP
- Luke Wake, Attorney, Pacific Legal Foundation
- [Moderator] Clark Neily, Vice President for Criminal Justice, Cato Institute
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Joel Zinberg joins the podcast to discuss a range of COVID-19 vaccine questions. How has the development process under Operation Warp Speed compared to the normal vaccine development process? Where do the leading vaccines currently stand in terms of FDA approval? And what difficulties might arise during the distribution stage?
Featuring:
- Joel Zinberg, Senior Fellow, Competitive Enterprise Institute
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On November 30, 2020, FCC Chairman Ajit Pai joined the Federalist Society's Columbia Student Chapter for a wide-ranging discussion on net neutrality, Section 230, and more, in an online Q&A co-sponsored by the Regulatory Transparency Project.
Featuring:
- Ajit Pai, Chairman, Federal Communications Commission
- [Moderator] Brad Larson, Regulatory Transparency Project Series Chair, the Federalist Society's Columbia Student Chapter
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On November 19, 2020, the Federalist Society's Regulatory Transparency Project and the Memphis Lawyers Chapter co-hosted an online event on "Civil Liberties and COVID-19 Shelter in Place Orders."
Featuring:
- Julia Mahoney, John S. Battle Professor of Law, University of Virginia School of Law
- [Introduction] J. Gregory Grisham, Of Counsel, Fisher & Phillips, LLP
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The House Committee on the Judiciary recently released a report on the state of competition in the digital marketplace. The report, which was the result of a 16-month-long investigation, describes itself as "an attack on how America has approached antitrust for the past 40 years."
One of the recommendations in the report involves shifting the evidentiary burden of proof from the plaintiff to the defendant, particularly in civil mergers challenges, which would entail a significant change to antitrust law.
In this episode, Ashley Baker lays out the current burden of proof framework used in U.S. courts in competition law cases, the role of presumptions in antitrust litigation, and the potential implications of the burden shift proposed in the report.
Featuring:
- Ashley Baker, Director of Public Policy, Committee for Justice
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In the absence of federal data privacy legislation, some states have acted to pass their own laws on the topic. Notably, California voted in favor of Prop 24 placing additional requirements on the CCPA and in favor of stringent consumer privacy requirements. In other cases, such as Michigan, states have established warrant requirements to protect consumer electronic data and citizens' privacy from the government. This expert panel discusses what state data privacy actions mean for the debates surrounding data privacy as well as what might be anticipated in the next sessions of Congress and state legislatures.
Featuring:
Jennifer Huddleston, Director of Technology & Innovation Policy, American Action Forum
Joseph Jerome, Multistate Policy Director, Common Sense Media
[Moderator] Matthew Heiman, General Counsel & Corporate Secretary, Waystar Health; Senior Fellow and Director of Planning, National Security Institute
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The House Judiciary Committee’s Antitrust Subcommittee recently released findings of a 16-month investigation into competition in the digital economy. The 449-page staff report, “Investigation of Competition in the Digital Marketplace: Majority Staff Report and Recommendations”, proposes sweeping changes to U.S. antitrust laws and enforcement that could have far-reaching effects throughout the economy.
This live podcast featuring FTC Commissioner Noah Phillips, Svetlana Gans, and Koren Wong-Ervin features an insightful look at the report, its findings, and its potential ramifications.
Featuring:
- Svetlana Gans, Vice President & Associate General Counsel, NCTA
- Hon. Noah Phillips, Commissioner, Federal Trade Commission
- Koren Wong-Ervin, Partner, Axinn, Veltrop & Harkrider LLP
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In this episode, Ian Adams lays out the current state of driverless car technology, discusses its implications for the disabled community, and breaks down the decisions federal and state policymakers are facing when it comes to regulating the technology.
Featuring:
- Ian Adams, Executive Director, International Center for Law & Economics
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On October 20, 2020, the Federalist Society's Georgetown Law Student Chapter and the Regulatory Transparency Project hosted John C. Yoo and Saikrishna B. Prakash for an online discussion on the extent of executive power.
In his new book, "Defender in Chief," Yoo argues that President Trump – despite his populism – has become more often the defender rather than the opponent of the original Constitution. In "The Living Presidency," Prakash counters that Trump, like many modern presidents, has violated the Constitution's grant of executive power.
Featuring:
- Saikrishna B. Prakash, James Monroe Distinguished Professor of Law and Paul G. Mahoney Research Professor of Law, University of Virginia School of Law
- John C. Yoo, Emanuel S. Heller Professor of Law; Co-Faculty Director, Korea Law Center; and Director, Public Law & Policy Program, UC Berkeley School of Law
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On October 20, 2020, the Department of Justice (DOJ) filed its much-anticipated lawsuit against Google. The case is the most high-profile antitrust challenge since the Microsoft case more than 20 years ago. The Justice Department has alleged that Google monopolized the search and search advertising markets, inhibiting rivals such as Bing, DuckDuckGo, and Yahoo from succeeding and thereby ultimately harming competition and consumers. This distinguished panel debated the merits of the DOJ's antitrust claims, discussed the potential parallels to the Microsoft action, and opined on the government's likelihood of success at trial.
Featuring:
- Geoffrey A. Manne, President and Founder, International Center for Law & Economics
- A. Douglas Melamed, Professor of the Practice of Law, Stanford Law School
- Christopher L. Sagers, James A. Thomas Distinguished Professor of Law, Cleveland-Marshall College of Law
- [Moderator] Brianna S. Hills, Associate, Boies Schiller Flexner LLP
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On October 28, 2020 the Federalist Society's Akron Student Chapter hosted George Horvath and Adam Mossoff for a discussion of how patents can affect medical innovation. Specifically, the two discussed how patents have already come into play in the response to COVID-19, and how they will continue to do so as the fight against the pandemic evolves.
Featuring:
George Horvath, Assistant Professor of Law, University of Akron School of Law
Adam Mossoff, Professor of Law, Antonin Scalia Law School, George Mason University
[Moderator] Camilla Hrdy, Associate Professor of Law, University of Akron School of Law
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Recent disputes between the United States and China have focused on trade, but perhaps the most potent trade-related issue is not tangible products but intangible property. China's policies and practices involving intellectual property reveal a plan for luring investment and innovation to China for economic advantage.
On this live podcast, world-renowned experts in intellectual property and China's policies discuss whether this constitutes a violation of international norms, and what, if anything, the United States should be doing about it.
Featuring:
- Mark Cohen, Director and Senior Fellow, Berkeley Center for Law and Technology, University of California at Berkeley
- Hon. Paul R. Michel, Chief Judge (ret.), U.S. Court of Appeals for the Federal Circuit
- Hon. Randall R. Rader, Chief Judge (ret.), U.S. Court of Appeals for the Federal Circuit and Honorary Professor, Tsinghua University
- [Moderator] Brian O'Shaughnessy, Partner, Dinsmore & Shohl LLP
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Data portability has been a hot topic of late, from GDPR to CCPA to the FTC's recent Data to Go Workshop. To some, data portability is a consumer right to access and move individual data. For others, data portability means the sharing of larger swaths of data with other services and platforms to lower entry barriers to effective competition.
Although both forms of portability aim to enhance consumer welfare and increase competition, data portability raises a host of issues, such as privacy protection, data security, and intellectual property rights. Additionally, there is evidence that data portability mandates, when used as a competition remedy, is costly, ineffective, and may reduce business incentives, and could entrench incumbents by making it difficult for smaller competitors to change their services and modernize their products.
This comes as many competition agencies and legislatures alike are considering interoperability and data portability mandates to increase competition. And, Congress is set to release a report with recommendations for reducing the market power of online platforms, which may include these mandates.
The Regulatory Transparency Project explored the hot topic of data portability over the course of a two-part virtual panel series entitled, "Data Portability Mandates, Consumer Privacy Protections, and Competition Law." The first panel discussed the consumer protection and privacy implications of data portability, and this panel turned to the use of portability and interoperability mandates in competition law.
Featuring:
- Jay Ezrielev, Founder and Managing Principal, Elevecon LLC
- Bruce Hoffman, Partner, Cleary Gottlieb Steen & Hamilton LLP
- Alex Petros, Policy Counsel, Public Knowledge
- [Moderator] Ashley Baker, Director of Public Policy, Committee for Justice
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The creators of the award-winning documentary, They Say It Can't Be Done, in partnership with the Federalist Society's Regulatory Transparency Project, present It Can Be Done Live — a conversation between entrepreneurs, regulatory experts, and noted academics around creative and bipartisan solutions to global challenges to our shared future. The last of four panel events, It Can Be Done Live: The Future of Our Food, took place on October 1st, 2020.
Over the next 30 years, our global population is expected to grow by more than 2 billion people to 9 billion people inhabiting this planet. How will we feed a rapidly growing population with decreased land and water resources and increased attention to animal welfare and the environment? Is that even possible? The panelists explored the potential of human ingenuity to solve these problems and the conditions necessary to make those solutions a reality. We say it can be done.
Featuring:
- John Mackey, Co-Founder and CEO, Whole Foods Market
- Sonny Perdue, Secretary, U.S. Department of Agriculture
- Josh Tetrick, Co-Founder and CEO, Eat Just, Inc.
- [Moderator] Anastasia P. Boden, Attorney, Economic Liberty Project, Pacific Legal Foundation
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Data portability has been a hot topic of late, from GDPR to CCPA to the FTC’s recent Data to Go Workshop. To some, data portability is a consumer right to access and move individual data. For others, data portability means the sharing of larger swaths of data with other services and platforms to lower entry barriers to effective competition.
Although both forms of portability aim to enhance consumer welfare and increase competition, data portability raises a host of issues, such as privacy protection, data security, and intellectual property rights. Additionally, there is evidence that data portability mandates, when used as a competition remedy, is costly, ineffective, and may reduce business incentives, and could entrench incumbents by making it difficult for smaller competitors to change their services and modernize their products.
This comes as many competition agencies and legislatures alike are considering interoperability and data portability mandates to increase competition. And, Congress is set to release a report with recommendations for reducing the market power of online platforms, which may include these mandates.
The Regulatory Transparency Project explored the hot topic of data portability over the course of a two-part virtual panel series entitled, "Data Portability Mandates, Consumer Privacy Protections, and Competition Law." This panel discussed the consumer protection and privacy implications of data portability, and the second panel turned to the use of portability and interoperability mandates in competition law.
Featuring:
- Peter Swire, Elizabeth and Thomas Holder Chair and Professor of Law and Ethics, Scheller College of Business, Georgia Institute of Technology
- Liad Wagman, Professor of Economics, Stuart School of Business, Illinois Institute of Technology
- Gabriela Zanfir-Fortuna, Senior Counsel, Future of Privacy Forum
- [Moderator] Svetlana Gans, Vice President & Associate General Counsel, NCTA
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In this episode, Jennifer Huddleston and Ashkhen Kazaryan break down the recent news related to Section 230 of the Communications Decency Act, including Justice Clarence Thomas's statement, controversy over Twitter and Facebook's moderation practices, and FCC Chairman Ajit Pai's announcement on rulemaking related to the law.
Featuring:
- Jennifer Huddleston, Director of Technology and Innovation Policy, American Action Forum
- Ashkhen Kazaryan, Director of Civil Liberties, TechFreedom
Visit our website - www.RegProject.org - to learn more, view all of our content, and connect with us on social media.
The creators of the award-winning documentary, They Say It Can't Be Done, in partnership with the Federalist Society's Regulatory Transparency Project, present It Can Be Done Live - a conversation between entrepreneurs, regulatory experts, and noted academics around creative and bipartisan solutions to global challenges to our shared future. The third of four panel events, It Can Be Done Live: The Future of Our Earth, took place on September 24th, 2020.
By 2050, 9 billion humans will share this planet and how we protect it is one of the most important questions of our time. How will we ensure that we can adapt to a changing climate, that we will all have access to clean air and fresh water, and that habitats are protected? While these goals have notable public support, reasonable people differ on the best methods to protect the environment. Are there more effective and less burdensome ways to accomplish these vital goals? The panelists explored the potential of human ingenuity to solve these problems and the conditions necessary to make those solutions a reality. We say it can be done.
Featuring:
- James W. Coleman, Associate Professor of Law, Southern Methodist University Dedman School of Law
- David Doniger, Director, Climate & Clean Air Program, Natural Resources Defense Council
- Charles Hernick, Vice President of Policy and Advocacy, Citizens for Responsible Energy Solutions
- Andrew Wheeler, Administrator, U.S. Environmental Protection Agency
- [Moderator] Susan Dudley, Director, Regulatory Studies Center and Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, George Washington University
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On October 7, 2020, the Federalist Society's Pennsylvania Student Chapter and the Regulatory Transparency Project co-sponsored an event on "Antitrust Populism and the Conservative Movement."
During the 1986 Supreme Court confirmation hearings for then-Judge Antonin Scalia, he was asked about his views on antitrust. "In law school, I never understood [antitrust law]," Scalia explained, "I later found out, in reading the writings of those who now do understand it, that I should not have understood it because it did not make any sense then." Some contend that the much-needed coherency in antitrust law was brought about by the Chicago School revolution and the adoption of the consumer welfare standard.
Today, Robert Bork's consumer welfare paradigm faces challenges. Antitrust law is back at a political crossroads, with both sides calling for a politicized approach to address problems such as anti-conservative bias, economic and racial inequality, and a whole host of other issues, while focusing on slogans and labels rather than relevant economic and legal questions. Additionally, some experts argue that the economic consequences of many of the recent proposals would make the American economy and consumers substantially worse off across a wide array of industries. At the same time, today's antitrust debate underscores some interesting rifts and tension within both political parties, serving as an interesting microcosm of broader political dynamics.
Featuring:
-Ashley Baker, Director of Public Policy, Committee for Justice
-Herbert Hovenkamp, James G. Dinan University Professor, University of Pennsylvania Carey Law School
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Recent weeks have been chock-full of headlines regarding antitrust and big tech companies, from the House Judiciary Antitrust Subcommittee report to the Senate Commerce Committee subpoenas of top CEOs. In this episode, Neil Chilson breaks down these recent developments and discusses how they fit into the broader picture of antitrust law in the United States.
Featuring:
- Neil Chilson, Senior Research Fellow for Technology and Innovation, Charles Koch Institute
Visit our website - www.RegProject.org - to learn more, view all of our content, and connect with us on social media.
The creators of the award-winning documentary, They Say It Can't Be Done, in partnership with the Federalist Society's Regulatory Transparency Project, present It Can Be Done Live - a conversation between entrepreneurs, regulatory experts, and noted academics around creative and bipartisan solutions to global challenges to our shared future. The second of four panel events, It Can Be Done Live: The Future of Our Health, took place on September 17th, 2020.
We are in the throes of a global pandemic that threatens the lives of millions and the way of life for billions more. Our healthcare systems are stretched to their limits. At the same time, innovations are being developed that could move us from treatments to outright cures. How do we ensure that these advancements are safe and effective, but not needlessly delayed when we need them most? The panelists explored the potential of human ingenuity to solve these problems and the conditions necessary to make those solutions a reality. We say it can be done.
Featuring:
- Julie Allickson, Chief Manufacturing Development Center Officer, Wake Forest Institute for Regenerative Medicine
- Betsy McCaughey, Chairman, Committee to Reduce Infection Deaths
- Joshua Sharfstein, Vice Dean for Public Health Practice and Community Engagement, Bloomberg School of Public Health, Johns Hopkins University
- Dan Troy, Chief Business Officer, Chief Administrative Officer, and General Counsel, Valo
- [Moderator] Christina Sandefur, Executive Vice President, Goldwater Institute
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The Environmental Protection Agency recently proposed retaining both the existing particulate matter and ozone primary and secondary standards. Over the last several decades, air quality in the United States has improved dramatically. Though many have advocated for more stringent PM and ozone standards, the environmental and public health imperative for tighter standards is the subject of debate. Unlike in the past, the agency was able to finish the review of these criteria pollutants within the five-year statutory window. What was the basis for retaining these standards, how did the agency review the standards in such a timely fashion, and are these actions supported by the best available science? What are the arguments for and against these proposed actions? And are these standards, if finalized, likely to withstand judicial review? Experts discuss these and other critical questions.
Featuring:
- Jeffrey R. Holmstead, Partner, Bracewell LLP
- Justin Schwab, Founder, CGCN Law, PLLC
- [Moderator] Daren Bakst, Senior Research Fellow, The Heritage Foundation
Visit our website - www.RegProject.org - to learn more, view all of our content, and connect with us on social media.
The creators of the award-winning documentary, They Say It Can't Be Done, in partnership with the Federalist Society's Regulatory Transparency Project, present It Can Be Done Live - a conversation between entrepreneurs, regulatory experts, and noted academics around creative and bipartisan solutions to global challenges to our shared future. The first of four panel events, It Can Be Done Live: The Future of Our Seas took place on September 10th, 2020.
Our oceans are changing rapidly and not for the better. Ocean acidification, rising sea levels, plastic waste, and overfishing are contributing to an unsustainable and unhealthy ecosystem in our seas. Can we find a way to reverse the damage? The panelists will explore the potential of human ingenuity to solve these problems and the conditions necessary to make those solutions a reality. We say it can be done.
Featuring:
- Tom Bell, Professor, Dale E. Fowler School of Law, Chapman University
- Patrick Reasonover, Producer, They Say It Can't Be Done
- Scotty Schmidt, Co-Founder & CEO, Primary Ocean Providers
- Julie Friedman Steele, CEO & Board Chair, World Future Society
- [Moderator] Kimberly Hermann, General Counsel, Southeastern Legal Foundation
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On September 22, the Federalist Society's Villanova Student Chapter co-sponsored a debate on Medicare for All with the Villanova Law Health Law Society. In this live podcast, experts debate the pros and cons of a single-payer health insurance system, discuss the practical likelihood of such a system being implemented, and compare the United States' approach to health insurance to those of other countries.
Featuring:
- Michael F. Cannon, Director, Health Policy Studies, Cato Institute
- Delphine O'Rourke, Partner, Goodwin Procter LLP
- Ed Weisbart, Chair, Missouri Chapter, Physicians for a National Health Program
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In May, the Environmental Protection Agency announced a new proposed rule to "establish the procedures and requirements for how the U.S. Environmental Protection Agency (EPA) will manage the issuance of guidance documents subject to the requirements of the Executive order entitled 'Promoting the Rule of Law Through Improved Agency Guidance Documents'." The EPA indicated that they "intended to increase the transparency of EPA's guidance practices and improve the process used to manage EPA guidance documents."
The comment period for the proposed rule closed in late June. This live podcast features an update and an informative conversation with Administrator Wheeler and Jeffrey Holmstead.
Featuring:
- Andrew Wheeler, Administrator, Environmental Protection Agency
- [Moderator] Jeffrey Holmstead, Partner, Bracewell LLP
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Citing national security concerns, the Trump administration has ordered TikTok's Chinese parent company, Bytedance Ltd., to sell U.S. operations of the popular video-sharing app to an American company by November 12. As the deadline inches closer, three major American companies have come to the fore as prospective purchasers but no sale has been completed, due in part to complications imposed by the Chinese government.
How might this standoff play out? Does TikTok pose a significant enough national security threat to warrant the forced sale? And how does this situation fit into the broader picture of U.S.-China relations?
Experts discuss.
Featuring:
- Matthew Feeney, Director, Project on Emerging Technologies, The Cato Institute
- Jamil Jaffer, Founder & Executive Director, National Security Institute
- [Moderator] Ashkhen Kazaryan, Director of Civil Liberties, TechFreedom
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Section 230 of the Communications Decency Act provides liability protection to platforms, internet service providers, and other online intermediaries for third-party content they host or republish. It also provides liability protections for actions taken "in good faith" by such entities to moderate content. Section 230 has recently come under scrutiny from President Trump, members of Congress, and others who have raised questions about the appropriateness of these protections and their continued viability "in the Age of Twitter."
In May, President Trump issued an Executive Order that directed the National Telecommunications and Information Administration (NTIA) to file a petition for rulemaking with the Federal Communications Commission (FCC) proposing regulations to clarify the scope of Section 230. The FCC is currently soliciting public comment on the NTIA petition, which was filed on July 27.
In this live podcast, panelists discuss the background of Section 230 and reflect on whether it continues to encourage innovation and free speech online, or if changes are needed. What should the FCC do to address the pending NTIA petition? And, in light of the upcoming elections, what are the political dynamics at play-at the FCC, in Congress, and in the White House?
Featuring:
- Jon Adame, General Counsel, Office of Sen. Marsha Blackburn
- Hon. Adam Candeub, Acting Assistant Secretary of Commerce for Communications and Information
- Prof. Eric Goldman, Professor of Law and Co-Director, High Tech Law Institute, Santa Clara University School of Law
- Ashkhen Kazaryan, Director of Civil Liberties, TechFreedom
- [Moderator] Jamie Susskind, Vice President of Policy and Regulatory Affairs, Consumer Technology Association
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This live podcast discusses the Ninth Circuit's recent opinion in FTC v. Qualcomm, in which the court reversed the Federal Trade Commission's 2019 trial court win. The Ninth Circuit ruled that Qualcomm did not violate antitrust law through its licensing practices for standard-essential patents.
John Shu, a professor, attorney, and legal commentator, discusses the ruling and examines the history, arguments, and ramifications of the case.
Featuring:
John Shu, Attorney and Legal Commentator
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Environmental laws such as the Clean Air Act allow private plaintiffs and environmental advocacy groups to file citizen suits alongside the government's environmental enforcement actions against polluters. The Environmental and Natural Resources Division of the Department of Justice is now pushing to end the practice in a federal case involving DTE Energy, Michigan's largest electrical utility and a major operator of natural gas pipelines. The Sierra Club intervened on the government's side and is seeking court approval of a side agreement in which DTE would close three coal plants, in addition to the penalties and mitigation secured by the Justice Department.
Such Supplemental Environmental Projects (or SEPs) are supposed to supplement the government's enforcement actions. But critics - and now DOJ - argue that SEPs often supplant the penalty that the government has sought in its enforcement action. Such provisions, critics say, amount to a delegation of a core executive function that the Constitution vests in the president. It allows private advocacy groups to override the government's enforcement priorities with their own, and then profit from coercive use of penalties that arise under environmental protection laws, the faithful execution of which is entrusted to the president and to the officials under his control. Critics say that any citizen suit claims arising under federal environmental laws that also give rise to enforcement actions should be extinguished when the enforcement action is resolved.
To the extent advocacy groups induce private companies to agree to such SEPs by promising to give up on claims arising under federal environmental laws subject to federal enforcement, should the practice of SEPs be viewed as an unconstitutional infringement on a core executive function? Should the government's ability to extinguish such private claims be viewed as a taking?
Featuring:
- Richard Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
- Eric Groten, Partner, Vinson & Elkins LLP
- Joel Mintz, Professor Emeritus of Law and C. William Trout Senior Fellow in Public Interest Law, Shepard Broad College of Law, Nova Southeastern University
- [Moderator] Mario Loyola, Senior Fellow, Competitive Enterprise Institute
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Asserting their sovereign interests or “states' rights,” many states are increasingly attempting to inject state officials’ policy preferences on national and global issues through state legislation or regulation on myriad subjects including energy, the environment, immigration, drugs, labor, health, food, and transportation. In what ways does the Interstate Commerce Clause, or the so-called Dormant Commerce Clause, limit the scope of the constitutionally legitimate spheres of these kinds of state legislation or regulation? In other words, what is the meaning of federalism in a constitutional system designed to facilitate interstate commerce? And, what is the proper judicial role, if any, in policing state laws that seek to interfere or have the effect of interfering with the free flow of commerce among the several states?
These questions are subject to considerable debate, with significant disagreement even within normally like-minded camps. Some conservatives and liberals alike think there is no such thing as an enforceable Dormant Commerce Clause. Others with various ideological priors view the Dormant Commerce Clause as invalidating only state laws that discriminate in favor of in-state activity over activities in other states. Another view posits that the Dormant Commerce Clause is broader than a non-discrimination principle and should be used to invalidate state laws that unduly burden or interfere with the flow of interstate commerce. And still others take views in between or beyond these positions.
Responding to Professor Donald Kochan’s recent essay in the Notre Dame Law Review Reflection, “The Meaning of Federalism in a System of Interstate Commerce: Free Trade Among the Several States”—an essay that emphasizes that commerce facilitation was a primary driver of the move from the Articles of Confederation to the Constitution—the panelists explore examples of current state laws and regulations that expand a state’s reach into national and international affairs, and they analyze and debate the different interpretations of the Constitution regarding the proper role of the judiciary in evaluating these laws.
Featuring:
Jonathan Adler, Johan Verheij Memorial Professor of Law, Director of the Center for Business Law & Regulation, Case Western Reserve University School of Law
James Coleman, Associate Professor of Law, Southern Methodist University Dedman School of Law
Donald Kochan, Professor of Law and Deputy Executive Director, Law and Economics Center, Antonin Scalia Law School, George Mason University
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As cryptocurrencies have proliferated in the private sector, central banks are now contemplating getting into the game. Venezuela tried unsuccessfully to popularize its currency with the digital petro. China may be more successful with its plan to digitize the yuan.
Now, some are saying the U.S. Federal Reserve should issue its own cryptocurrency, with names like "Fedcoin" and the "digital dollar." Most proposals for this national cryptocurrency also include direct consumer deposit accounts with the Fed.
Proponents give various reasons why the Fed should issue digital currency, from protecting the dollar competition with China to relieving the poor from high bank fees. But opponents cite multiple problems such a system would have from privacy concerns with the Fed having direct access to consumer spending data, to enabling currency manipulation, to crowding out innovation from private cryptocurrencies and payment systems.
Featuring:
- J. Christopher Giancarlo, Senior Counsel, Willkie Farr & Gallagher LLP
- Norbert J. Michel, Director, Center for Data Analysis, Heritage Foundation
- [Moderator] John Berlau, Senior Fellow, Competetive Enterprise Institute
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The next presidential inauguration will be on January 20, 2021. The six months between then and today will involve a flurry of regulatory activity, just as the final months of presidential terms always do. Whether the next inauguration features Donald Trump or Joe Biden, agencies will try to complete as many regulatory proceedings as possible before the inauguration, with an eye to not just the end of the current presidential term but also the beginning of the next one.
What actions should we expect agencies to take? To what extent can the current administration issue "midnight rules" affecting policy beyond January 20? And to what extent could the Congressional Review Act permanently erase those rules?
Featuring:
- Prof. Jack Beermann, Harry Elwood Warren Scholar and Professor of Law, Boston University Law School
- Mr. Daniel Pérez, Senior Policy Analyst, GW Regulatory Studies Center
- [Moderator] Prof. Adam White, Assistant Professor and Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School at George Mason University
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In 2017 the Department of Education withdrew the Obama administration's guidance documents on Title IX sexual harassment. The next year it issued a notice of proposed rulemaking under the Administrative Procedure Act. The department received more than 124,000 comments on the proposal and held meetings with many interested parties. In May, the Department released its new rules - the first such rulemaking on a major Title IX issue since 1975.
The new rules require colleges to use more robust procedures when adjudicating student-on-student allegations of sexual assault, including by using a live hearing where representatives of each side can cross-examine adverse witnesses. The rules also narrow the definition of sexual harassment cases that schools must address under Title IX, and limit university liability for off-campus events.
Lawsuits from blue-state Attorneys General and activist groups hope to block all or part of the rules. Three of these lawsuits have sought preliminary injunctions, on grounds that the rules will make it harder to eradicate sexual harassment on campus. These legal challenges also have minimized concerns that colleges currently deny accused students a meaningful chance to defend themselves.
Civil liberties advocates have long advocated a fairer approach to Title IX adjudications, but they recently gained important support in the form of briefs backing the new regulations filed by 15 states, including Texas and Florida. These red and purple states argued that Obama-era policies "trampled the rights of students and created a false choice: either combat sexual harassment or protect constitutional liberties. We propose a different option: do both."
This live podcast discusses and analyzes what this new rulemaking means for students, schools, potential legal challenges, and future administrations.
Featuring:
- [Moderator] Linda Chavez, Chairman, Center for Equal Opportunity
- KC Johnson, Professor of History, Brooklyn College and SUNY Graduate Center
- Stuart S. Taylor Jr., Freelance Journalist and Author
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COVID-19 has created many challenges for employers, including making it more difficult for them to comply with labor and employment laws. Recently-enacted statutes like the First Families Act and the CARES Act, as well as existing laws like the National Labor Relations Act and Title VII of the Civil Rights Act, have presented significant compliance challenges for employers.
Featuring Tammy McCutchen and G. Roger King, this live podcast reviews federal and state labor and employment issues and options for employers to consider.
Featuring:
- G. Roger King, Senior Labor and Employment Counsel, HR Policy Association
- Tammy McCutchen, Principal, Littler Mendelson PC
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American tech companies like Google, Apple, Facebook, and Amazon are some of the most successful companies in the world. Recently, these companies have faced various criticisms, with some questioning if they are violating the antitrust laws. Antitrust investigations are ongoing by the DoJ, FTC, and the attorneys general of many states. On Wednesday, July 29, a Congressional hearing was held with the companies' CEOs on the question of online platforms and market power.
This live podcast explores what these investigations tell us about innovation and antitrust, as well as the current concerns regarding these firms' market power and conduct. Can current antitrust law and competition policy address this dynamic market? How might antitrust enforcement impact innovation? What do these investigations and calls to break up big tech companies tell us about the future of antitrust enforcement and competition policy?
Featuring:
- Thomas Hazlett, H.H. Macaulay Endowed Professor of Economics, Clemson College of Business
- Jennifer Huddleston, Director of Technology & Innovation Policy, American Action Forum
- Hal Singer, Managing Director, Econ One
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Prof. Richard Epstein's The Dubious Morality of Modern Administrative Law examines how the growth of the administrative state as a result of FDR's New Deal has coincided with many different Supreme Court decisions since the 1936-37 term of the Court that legitimized the reach of different administrative agencies by giving them far more control over substantive issues through different forms of judicial deference to agency interpretation, such as Auer and Chevron deference.
In this live podcast, Prof. Adam J. White interviews Prof. Epstein about his new book, and then Prof. Epstein fields caller questions on administrative law.
Featuring:
- [Moderator] Prof. Adam J. White, Assistant Professor and Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School at George Mason University
- Prof. Richard Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
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This expert panel examined recent calls for the Federal Trade Commission (FTC) to engage in substantive rulemaking under the competition and consumer-protection prongs of Section 5 of the FTC Act. How far does FTC statutory authority under 6(g) extend? Is rulemaking appropriate as a matter of policy? How has FTC rulemaking fared in the past and what guideposts should apply?
Opening Remarks:
- Noah Phillips, Commissioner, Federal Trade Commission
Panel Featuring:
- James Cooper, Associate Professor of Law and Director, Program on Economics & Privacy, Antonin Scalia Law School, George Mason University
- William MacLeod, Partner, Kelly, Drye & Warren LLP
- Joshua Wright, Executive Director, Global Antitrust Institute, Antonin Scalia Law School, George Mason University
- [Moderator] Svetlana Gans, Vice President & Associate General Counsel, NCTA
- [Introduction] Nathan Kaczmarek, Director, Article I Initiative | Director, Regulatory Transparency Project
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As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.
How does the Federal Trade Commission (FTC) calculate consumer injury and civil penalties in consumer protection matters? This teleforum will discuss the FTC’s remedial powers, process, and suggestions for reform, including how the Supreme Court’s recent ruling in Liu v. SEC and other cases may impact the FTC going forward.
Featuring:
James Cooper, Associate Professor of Law and Director, Program on Economics & Privacy, Antonin Scalia Law School, George Mason University
Andrew Stivers, Deputy Director for Consumer Protection, Bureau of Economics, Federal Trade Commission
Berin Szóka, Senior Fellow, TechFreedom
John Villafranco, Partner, Kelly, Drye & Warren LLP
[Moderator] Svetlana Gans, Vice President & Associate General Counsel, NCTA
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In the midst of the COVID-19 pandemic, the federal government is waiving affirmative action requirements in federal construction projects. Wen Fa discusses whether state and local regulations should follow suit.
Featuring:
- Wen Fa, Attorney, Pacific Legal Foundation
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In an effort to combat the spread of COVID-19 and contain its impact, nations across the world are exploring the use of various methods of tracking the virus. Some – such as Singapore and South Korea – have established national surveillance networks that operate in real-time to assist in this task, while others – like the United States – have largely delegated this effort to individual states, which can result in a patchwork of different surveillance activities. Private companies – like Google and Apple – have also stepped in to assist in this effort.
Increased visibility into the virus’s spread appears crucial to public health authorities’ efforts but concerns have been raised that such widespread data collection activities may be overly intrusive and that privacy interests have not been adequately considered in the effort to stop the spread of this virus. Further, some question the security of personal health data, especially as hackers and cyber-criminals turn their attention towards these new surveillance programs.
In this podcast, our panel of experts explores these important issues and more.
Featuring:
- Drew Bagley, Vice President and Counsel for Privacy and Cyber Policy, CrowdStrike
- Neil Chilson, Senior Research Fellow for Technology and Innovation, Charles Koch Institute
- Roger Klein, Faculty Fellow, Center for Law, Science & Innovation, Sandra Day O'Connor College of Law
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What is the legislative and legal background of the recent Executive Order on Preventing Online Censorship, how will it affect Section 230 of the Communications Decency Act, and what may be the unforeseen consequences of this move? These and other questions are addressed in this episode.
Featuring:
- [Host] Adam Thierer, Senior Research Fellow, Mercatus Center, George Mason University
- Ashkhen Kazaryan, Director of Civil Liberties, TechFreedom
- Neil Chilson, Senior Research Fellow for Technology and Innovation, Charles Koch Institute
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As small businesses across the country grapple with the current and potential impacts associated with COVID-19, the National Federation of Independent Business continues to track the latest developments from healthcare officials, congress and the administration. Please join us to hear about how the organization is supporting small businesses during this time, and which government policies are positively and negatively affecting business operations today and down the road.
Featuring:
- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
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While most agree cybersecurity is a vital part of modern national security and see cyber-attacks as an evolving and dangerous threat, the question of how best to utilize the resources of the United States to protect the nation against cyber-attacks is far more contested.
Many in the cybersecurity space see the path forward as including more public-private partnerships since private companies are often more directly impacted by cybercrime than the federal government and can be more dynamic in their responses.
However, given the criticism of these partnerships in the past, are they truly the best way to protect the public? In this time of quarantine, American society has become more dependent on internet technology, so examining how our nation protects itself and its companies digitally has never been more important.
Are public-private partnerships the best way to fight cybercrime? If not, can the government alone protect the nation from cybercrime? If these partnerships are the way of the future, how could they be improved? This episode will discuss these important questions and more.
Featuring:
- Dmitri Alperovitch, Co-Founder & Former CTO, CrowdStrike
- Jamil Jaffer, Adjunct Professor, NSI Founder, and Director, National Security Law & Policy Program, Antonin Scalia Law School
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Journalists and academics seem convinced that artificial intelligence is often biased against women and racial minorities. If Washington’s new facial recognition law is a guide, legislators see the same problem. But is it true? It’s not hard to find patterns in AI decisions that have a disparate impact on protected groups. Is this bias? And if so, whose?
Do we assume the worst about decisions with a disparate impact – applying a kind of misanthropomorphism to the machine – or can we objectively analyze the factors behind the decisions? If bias boils down to not producing proportionate results for each protected class, is the only remedy to impose a “proportionate result” constraint on AI processing – essentially imposing racial, ethnic, and gender quotas on every corner of life that is touched by AI?
Featuring:
- Stewart Baker, Partner, Steptoe & Johnson LLP
- Curt Levey, President, Committee for Justice
- Nicholas Weaver, Researcher, International Computer Science Institute and Lecturer, UC Berkeley
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In October of 2019, President Trump issued an executive order that imposed a series of restrictions and requirements on Federal agencies, and even included a requirement that agencies publish their guidance on the internet. The purpose of the executive order was to promote transparency and democratic fairness in the administrative law process. This has led to a renewed debate over what the relationship should be between the executive branch and the administrative state, and has also led to some disagreement over whether the executive order represented any meaningful change from the status quo.
Featuring:
- Hon. Steven Bradbury, General Counsel (and performing the functions and duties of Deputy Secretary), U.S. Department of Transportation
- John Walke, Director, Clean Air Project, Climate & Clean Air Program, Natural Resources Defense Council
- Prof. Adam White, Assistant Professor and Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School at George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
How can data privacy enforcement provide clarity for businesses while protecting the public from harm? What might be the best enforcement options available to the FTC and state attorneys general going forward? Jennifer Huddleston and Ian Adams discuss.
Featuring:
- Ian Adams, Executive Director, International Center for Law & Economics
- Jennifer Huddleston, Director of Technology and Innovation Policy, American Action Forum
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
In 2018, the Environmental Protection Agency proposed a rule entitled “Strengthening Transparency in Regulatory Science.” The proposal garnered over 9,000 unique public comments. On March 18, 2020, EPA published a supplemental notice of proposed rulemaking that, among other things, states that the EPA would be required to make public important information underlying both significant regulatory actions and influential scientific information disseminated by the Agency. Why is this EPA effort to promote transparency important? Why is it controversial? This episode will discuss and evaluate the proposed rule in light of the March 2020 supplementary notice.
Featuring:
- Dr. Richard B. Belzer, Associate Fellow, R Street Institute
- Prof. Adam White, Assistant Professor and Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, George Mason University Antonin Scalia Law School
- [Moderator] Daren Bakst, Senior Research Fellow, The Heritage Foundation
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
As countries, states, and locales have worked to get a handle on the spread of the COVID19 pandemic, one solution that appears to have been effective is thorough contact-tracing. In this episode, Jennifer Huddleston and Brent Skorup discuss how contact-tracing might work here, what privacy concerns it might involve, and what it means for data privacy going forward.
Featuring:
- Jennifer Huddleston, Director of Technology & Innovation Policy, American Action Forum
- Brent Skorup, Senior Research Fellow, Mercatus Center, George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
On September 4, 2019, the Federal Trade Commission announced sweeping regulatory changes to the operation of YouTube, one of the internet’s most popular websites. YouTube has 2 billion monthly active users and features content from more than 50 million individual creators, most of whom are small businesses or individuals. Many of the creators affected earn money using YouTube and stand to lose, in aggregate, hundreds of thousands if not millions of dollars from these regulatory changes. Some will need to restructure their business model. The changes also subject content creators to increased risk of prosecution and stiff fines. Yet these significant regulatory changes were never put before a legislature; none of the content creators or users of the website were privy to the rationale or design of the regulation; and there was no public process for comment. Instead, the new regulation was confidentially negotiated between YouTube and FTC staff and put into place by a court.
FTC settlements have long been praised by those who value the “soft law” benefits of such an approach: flexibility to deal with case-by-case specific problems, particularly in fast-changing industries; reduced need to establish one-size-fits-all industry-wide rules; efficient resolution of cases; the ability to shape future behavior through a kind of common law. Such settlements have also long been criticized by those who emphasize the difference between them and hard law: a creation of regulatory ambiguity; lack of process that considers the interests of the full range of stakeholders; a “rulemaking” environment with a power differential between the negotiating parties; and an agency ability to accumulate incremental changes to the law that in total can be quite significant.
This episode explores FTC settlements and consent decrees, including the YouTube case and what it means for FTC enforcement going forward. It will take place as part of the Federalist Society's Executive Branch Review Week.
Featuring:
- Jessica Rich, Distinguished Fellow, Institute for Technology Law & Policy, Georgetown Law
- Sean Royall, Partner, Kirkland & Ellis LLP
- Gerard Stegmaier, Partner, Reed Smith LLP
- [Moderator] Neil Chilson, Senior Research Fellow for Technology and Innovation, Charles Koch Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
In this episode, Brooks Rainwater and Jon Riches discuss developments in state and local regulations surrounding home-sharing and home-based businesses. How do we balance safety and public goods with innovation and entrepreneurialism?
Featuring:
- Brooks Rainwater, Senior Executive & Director, Center for City Solutions, National League of Cities
- Jon Riches, Director of National Litigation, Goldwater Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
In this episode, Ajit Pai joins Adam Thierer and Brent Skorup to discuss the principles driving the Federal Communications Commission in recent years, the "Keep Americans Connected" pledge, and how things have changed for the FCC in the midst of the COVID-19 pandemic.
Featuring:
- Ajit Pai, Chairman, Federal Communications Commission
- Brent Skorup, Senior Research Fellow, Mercatus Center, George Mason University
- [Host] Adam Thierer, Senior Research Fellow, Mercatus Center, George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
On March 18, the Senate passed and the President signed into law the “Families First Coronavirus Response Act.” Among other things, this new law, set to take effect no later than April 2, 2020, creates a new paid sick leave mandate for all employers with fewer than 500 employees and expands the application of the Family Medical Leave Act to cover all employers in certain circumstances related to the coronavirus. Karen Harned and James Paretti will walk listeners through key provisions of this new law.
Featuring:
- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
- James A. Paretti, Shareholder, Littler Mendelson P.C.
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
On March 4, 2020, the Regulatory Transparency Project sponsored a symposium with the University of Pennsylvania Federalist Society student chapter. The second panel of the symposium was titled "Should Social Media Platforms Be Viewpoint Neutral? Should the Government Care?"
Featuring:
- Adam Candeub, Michigan State University College of Law
- Carrie Goldberg, C. A. Goldberg PLLC
- Arthur Milikh, Heritage Foundation
- Nadine Strossen, New York Law School
- Moderator: Neil Chilson, Charles Koch Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
On March 4, 2020, the Regulatory Transparency Project sponsored a symposium with the University of Pennsylvania Federalist Society student chapter. The first panel of the symposium was titled "Do We Need to Rethink Antitrust for Big Tech?"
Featuring:
- Roger Alford, Notre Dame University
- Jay Himes, Labaton Sucharow LLP
- Salil Mehra, Temple University School of Law
- Moderator: Christopher Yoo, University of Pennsylvania Carey School of Law
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The recent Supreme Court ruling in Allen v. Cooper is the latest development in a decades-long series of Congressional enactments and Supreme Court rulings over whether and how Congress can abrogate the sovereign immunity of States from intellectual property infringement suits. This all-star panel will discuss the Court’s most recent decision in the context of the evolution of the Court’s sovereign immunity jurisprudence, the policy concerns of Congress and intellectual property owners, and where we might go from here.
Featuring:
- Prof. John T. Cross, Grosscurth Professor of Intellectual Property Law and Technology Transfer, University of Louisville Brandeis School of Law
- Prof. Ralph Oman, Pravel, Hewitt, Kimball and Kreiger Professorial Lecturer in Intellectual Property and Patent Law
- Prof. Steven Tepp, Professorial Lecturer in Law, George Washington Law, and President and Founder of Sentinal Worldwide
- Prof. Ernest A. Young, Alston & Bird Professor, Duke Law School
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Join us as Federal Communications Commission Chairman Ajit Pai discusses how the FCC is addressing the COVID-19 pandemic. What measures has the FCC taken to date, and what is planned in the future?
Featuring:
- Ajit Pai, Chairman, Federal Communications Commission
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Join us as the U.S. Department of Health and Human Services Deputy Secretary Eric Hargan discusses the role of his agency. Likely topics include COVID-19, as well as the agency’s regulatory reform efforts.
Featuring:
- Eric Hargan, Deputy Secretary of the Department of Health and Human Services (HHS)
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
On November 1, 2019, Neora, a Texas-based healthcare products multi-level marketing (MLM) business, filed suit in Illinois Federal Court against the FTC. The suit alleges that throughout three years of enforcement actions, the agency attempted to unilaterally and retroactively change the law governing MLMs without Congressional action or formal rulemaking. Neora asserts that in these types of regulatory enforcement actions other businesses are not only forced to try to prove their innocence, but they are forced to prove their innocence under standards that are not set forth by existing law. They argue that other businesses similarly situated are either coerced into resolutions/settlements or forced to fight.
Later on the same day, the FTC filed suit against Neora in New Jersey. The FTC asserts that Neora was unlike legitimate MLMs and was a “pyramid scheme” since its inception. The FTC argues that the company has focused on recruiting new distributors or so-called brand partners (BPs) and the vast majority of them don’t earn anything after expenses and quit.
Neora Co-CEO Deborah Heisz and lead litigation counsel Ed Burbach of Foley & Lardner will join us to describe their last four years of interactions with the FTC and the ultimate “fencing in” proposal that lead them to file suit.
Featuring:
- Ed Burbach, Partner, Foley & Lardner LLP
- Deborah Heisz, Co-CEO, Neora
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
The Environment and Natural Resources Division of the Department of Justice recently announced a policy that the Division would no longer agree to Supplemental Environmental Projects (SEPs) in settlement agreements or judicial consent decrees resolving violations of environmental laws. As defined by EPA, a SEP is an environmentally beneficial project or activity that is not required by law, but that a defendant agrees to undertake as part of the settlement of an enforcement action. Under EPA’s SEPs policy, the agency (through the Division) will seek a lesser civil monetary penalty in settling a civil enforcement action than what it would otherwise seek in the settlement in exchange for a defendant’s voluntary commitment to perform a SEP. Because SEPs purposefully trade civil monetary penalties payable to the U.S. Treasury for projects selected or approved by EPA that Congress either has not approved or had no occasion to consider, do SEPs violate the Miscellaneous Receipts Act and other laws intended to preserve Congress’ constitutional power of the purse?
Featuring:
- Jeffrey Clark, Assistant Attorney General, Environment and Natural Resources Division (ENRD), Department of Justice
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The COVID-19 pandemic has the medical community scrambling to address shortages of supplies and some clinicians to properly care for all of the many patients who will present soon with significant symptoms. Among the problems is a lack of sufficient numbers of physicians in some of the communities that have been hardest hit by the spread of the virus.
This episode will examine the current process for educating, training, and licensing physicians in the US, with a focus on whether the current process is sufficiently flexible to adjust as needed to accommodate changing demand by patients. James Capretta, the author of a recent paper on the subject ("Promoting a More Adaptable Physician Pipeline" released as part of the Regulatory Transparency Project), and Chris Pope, Senior Fellow at the Manhattan Institute, will briefly discuss the historical context of the US' licensing system, the basic steps that are involved, the federal government's role in financing residency training, the immigration rules for foreign-born physicians, and policies that might make the current system more flexible and adaptable to changing societal needs.
Featuring:
- James C. Capretta, Resident Fellow and Milton Friedman Chair, American Enterprise Institute
- Chris Pope, Senior Fellow, Manhattan Institute
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Governments at all levels are figuring out how to make sure sick people are treated and that coronavirus doesn’t spread. Some experts are now drawing attention to possible regulatory reforms (https://www.rstreet.org/2020/03/18/small-regulatory-reforms-that-can-help-people-during-the-pandemic/), as early reports suggested that federal agencies may have prevented private testing for COVID-19 before slowly issuing approval.
Others are calling for state-level reforms, such as changes to occupational licensing requirements. Existing occupational licensing laws arguably restrict medical professionals, including nurses and pharmacists, from practicing to the full scope of their training by limiting what duties they can take on and making nurses practice under doctor supervision. Licenses rarely transfer across state lines. This means that qualified doctors in one state cannot practice in other states, severely restricting their ability to provide telehealth services to potential patients. Advocates posit that these doctors should be allowed to prioritize the most pressing cases on telehealth. Many states have implemented emergency reforms regarding these issues to help prevent physician burnout and make sure medical professionals can focus their energies where needed.
Municipal-level reforms are also being discussed as vital to avoid penalizing residents for acting responsibly. In many localities, working from home requires the worker to overcome regulatory requirements. Some view this as generally unwise but are now drawing even greater attention to the topic because Americans are being urged to stay inside.
Further, while some regulations like parking limits make perfect sense in normal times, is suspending such rules worth considering in the current environment? This episode will discuss these issues and more.
Featuring:
- David Hyman, Scott K. Ginsburg Professor of Health Law & Policy, Georgetown University
- Roger Klein, Faculty Fellow, Center for Law, Science & Innovation, Sandra Day O'Connor College of Law
- Shoshana Weissmann, Senior Manager of Digital Media and Fellow, R Street Institute
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In this episode, Matthew Feeney hosts a discussion with Ashkhen Kazaryan and Caleb Watney on the approach regulators might take to the brave new world of facial recognition technology.
Featuring:
- Ashkhen Kazryan, Director of Civil Liberties, TechFreedom
- Caleb Watney, Fellow, Technology and Innovation, R Street Institute
- [Moderator] Matthew Feeney, Director, Project on Emerging Technologies, Cato Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Additional Resources:
- Brookings Institution: https://www.brookings.edu/blog/techtank/2019/06/20/what-are-the-proper-limits-on-police-use-of-facial-recognition/
- Cato Institute: https://www.cato.org/blog/should-police-facial-recognition-be-banned
- Tech Policy Corner: https://techpolicycorner.org/creeped-out-congress-grills-fbi-on-facial-recognition-tech-37a1123f48f8
38 states have certificate of need (CON) laws which make it illegal for healthcare providers to offer healthcare services to patients without first getting government permission. Defenders of CON laws assert that they are needed to control healthcare costs. However, these anti-competitive laws may violate a host of constitutional provisions, including state anti-monopoly clauses. Many courts have observed that CON laws are in fact anti-competitive but despite legal challenges, a majority of states have CON laws on the books today.
This episode discusses recent and current state CON law litigation, including the pending Singh v. North Carolina Dept of Health & Human Services matter.
Featuring:
- Christina Sandefur, Executive Vice President, Goldwater Institute
- Josh Windham, Attorney, Institute for Justice
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Does New York’s “rent stabilization” law violate the federal Constitution? The law, which regulates approximately 1 million apartments in New York City, was enacted more than fifty years ago and remains in effect based on an every-three-year declaration of a housing “emergency.” The law does not merely regulate rent levels, it also limits a property owner’s right to determine who uses an apartment, to convert the property to new uses, and to occupy the property for use by the owner and his or her family.
A lawsuit filed last year asserts that the New York law—including 2019 amendments that significantly increased the restrictions on property owners—violates due process and effects both physical and regulatory takings of the property that it regulates. New York City, New York State, and tenant advocacy groups have moved to dismiss the action.
Rent control is not just a New York phenomenon. Other cities across the country have enacted, or are considering, rent regulation legislation. Andrew Pincus, lead counsel for the plaintiffs, and Prof. Richard Epstein, of New York University School of Law, will discuss the constitutional challenge in the context of the Supreme Court’s evolving property rights jurisprudence.
Featuring:
- Prof. Richard Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
- Andrew Pincus, Partner, Mayer Brown LLP
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
In this Explainer episode, Jeff Stier tells the innovative story of Impossible Burger, a company that developed leghemoglobin to mimic the taste of meat in non-meat-based products. Instead of rushing to regulate this new development, FDA took a hands-off approach, allowing the company to bring a beneficial, and widely recognized as safe, product to market. Jeff argues that innovation, rather than heavy-handed regulation, ought to be the primary way of reducing harm.
Featuring:
- Jeff Stier, Senior Fellow, Consumer Choice Center and Taxpayers Protection Alliance
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
On March 15, 2020, certain authorities under the Foreign Intelligence Surveillance Act (FISA) will expire absent renewal by Congress. The authorities set to expire fall into three categories: 1) the business records provision (often referred to as Section 215) that allows for collection of call detail records, among other things; 2) roving wiretaps; and 3) the lone wolf provision. On March 11, the House passed a compromise bill that the Senate will soon consider. However, several Republican Senators have already urged President Trump to veto the reauthorization bill, should it pass both chambers.
This decision point comes at a time of heightened scrutiny, given the recent Department of Justice Inspector General report addressing the FBI's use of FISA while investigating the 2016 presidential election and a Foreign Intelligence Surveillance Court of Review order expressing "serious concerns about the accuracy and completeness" of the FBI's FISA applications in that case. Please join us for a timely discussion of the mechanics and processes of FISA, recent controversies, and issues Congress will consider as it determines whether and how to renew these key provisions.
Featuring:
- Ashley Baker, Director of Public Policy, Committee for Justice
- Nathan Leamer, Vice President of Public Affairs, Targeted Victory
Visit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.
In January 2017, the Federal Trade Commission (FTC) filed an antitrust complaint against Qualcomm in the Northern District of California. The FTC alleged that Qualcomm had unlawfully monopolized the market for certain semiconductors important in smartphone technology. Among other things, the FTC claimed that Qualcomm had maintained its market position by requiring chip customers to license their chips separately (known as the “no license, no chips” policy) and had refused to license its standard-essential patents (SEPs) to competitors.
Judge Lucy Koh held a bench trial in January 2019 and issued a decision in favor of the FTC in May 2019. In a lengthy opinion, the court determined that Qualcomm’s “no license, no chips” policy violated antitrust law and that Qualcomm had a separate antitrust duty to deal with its competitors. Judge Koh then issued an injunction that, among other things, prohibited Qualcomm from conditioning the supply of chips on a customer’s patent-license status and required Qualcomm to negotiate and make available licenses on FRAND terms.
Qualcomm appealed to the Ninth Circuit. In August 2019, the Ninth Circuit issued an order partially staying Judge Koh’s injunction. According to the Ninth Circuit, “Qualcomm has shown, at a minimum, the presence of serious questions on the merits” of the district court’s opinion. Additionally, the Ninth Circuit needs to decide whether the district court’s “order and injunction represent a trailblazing application of the antitrust laws, or instead an improper excursion beyond the outer limits of the Sherman Act.”
While these issues alone would be interesting, this case is even more intriguing because the Department of Justice (DOJ) has intervened in the case – in favor of Qualcomm. The DOJ filed an amicus brief in favor of the stay of injunction, as well as an amicus brief on the merits. The Ninth Circuit has also granted DOJ’s request for five minutes of oral argument time. Oral argument in the Ninth Circuit is set for February 13, 2020.
This episode will recap the district court’s decision, discuss the arguments likely to be made on appeal, and explore the bigger issues this case brings up for antitrust policy.
Featuring:
- Hon. F. Scott Kieff, Fred C. Stevenson Research Professor of Law and Director, Planning and Publications, Center for Law, Economics, & Finance, George Washington University Law School
- Prof. Kristen Osenga, Austin E. Owen Research Scholar & Professor of Law, The University of Richmond School of Law
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
For the past 50 years, the National Environmental Policy Act (NEPA) has required that the federal government assess the potential environmental impact of any major development projects involving the federal government.
Proponents of NEPA argue that changes to the NEPA review process would threaten sensitive wildlife habitats and roll back protections against climate change. Others argue, however, that the current NEPA process unnecessarily delays critical infrastructure projects, such as the building of highways, roads, pipelines, and telecommunications networks, without any material benefit in return.
In this episode, Professors David Adelman and James Coleman will discuss the recently proposed changes to the NEPA process and examine the potential effects.
Featuring:
- David Adelman, Harry Reasoner Regents Chair in Law, The University of Texas at Austin School of Law
- James Coleman, Associate Professor of Law, Southern Methodist University Dedman School of Law
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
The state of California and the Canadian province of Quebec have agreed to link their cap-and-trade systems for carbon emissions – these systems require polluters to pay for a permit when they emit greenhouse gases.
Now the federal government is suing California. The lawsuit alleges that this agreement violates the Constitution, which says states can’t make international treaties or enter into compacts with foreign powers without the consent of Congress. And it also alleges that California’s agreement discriminates against foreign commerce and interferes with the federal government’s exclusive authority over foreign affairs.
The lawsuit raises important issues about federal and state power that are as old as America but have rarely been tested in Court. Listen to expert law professors talk about how the Courts might look at these provocative and urgent questions and the challenge of climate regulation.
Featuring:
-James W. Coleman, Associate Professor of Law, Southern Methodist University Dedman School of
Law
-Sharmila L. Murthy, Associate Professor of Law, Suffolk University Law School
Visit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.
The Education Department’s Office for Civil Rights (OCR) is expected to issue in the coming weeks its long-awaited new rules for colleges and other educational institutions to follow in handling allegations of campus sexual harassment and assault. A highly controversial draft of the new rules has almost completed a notice-and-comment process launched in September 2017 by Secretary of Education Betsy DeVos. She said that the Obama Administration's OCR's decrees on such matters, and the processes used by virtually all universities, were stacked against accused students, almost all of them male, and often harmed accusers as well.
Spurred by judicial decisions and other evidence showing that innocent young men have been railroaded out of college with life-changing, often ruinous consequences, OCR issued its more than 30,000 words of proposed rules and comments in November 2018. The proposals would require numerous procedural safeguards, narrow the definition of sexual harassment, and limit university liability for off-campus events. Dozens of advocacy groups and universities, as well as tens of thousands of individuals, filed more than 120,000 formal comments over the next two months.
The vast majority were denunciations of the proposed rules by feminist and victims' rights groups, Democratic legislators and state attorneys general, and universities. The schools have financial and other incentives, including fear of campus activists’ wrath, to oppose more than minimal procedural protections for accused students. They argue that OCR’s proposals – especially those requiring live hearings with cross-examination – would be so traumatic for accusers that most would choose not to report sexual misconduct.
But civil liberties advocates, some law professors at Harvard and elsewhere – including a few prominent feminists -- and families of accused students filed strong responses. They argue that the universities’ pattern of presuming guilt and ignoring evidence of innocence is so entrenched that only federal action could bring a modicum of fairness. These commenters cite over 160 federal and state judicial decisions in recent years finding campus rules and bureaucrats alike biased against accused students.
Whatever the final rules may say, they are sure to be challenged both in court and in Congress as inconsistent with Title IX, the Constitution, or both.
Featuring:
- KC Johnson, Professor of History, Brooklyn College and the CUNY Graduate Center
- Stuart Taylor, Freelance Journalist and Author
- [Moderator] Linda Chavez, Chairman, Center for Equal Opportunity
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The Trump Administration recently released its final rule defining “waters of the United States” under the Clean Water Act. This rule, called the “Navigable Waters Protection Rule” is the replacement for the repealed 2015 Clean Water Rule. For decades, the Environmental Protection Agency and the U.S. Army Corps of Engineers have struggled to define “waters of the United States” in a way that passes legal muster. Criticism has long-focused on the alleged overreach by the agencies, the vagueness of the definition, and a disrespect for the state role in addressing clean water as envisioned by Congress. However, many critics of the new EPA and Corps’ rule argue that it is too narrow and not properly based on science. Please join us as our experts discuss the history of the “waters of the United States” definition, explain the new rule and what waters would be regulated, and provide their insight and perspective on the impact of this major new rule.
Featuring:
- Daren Bakst, Senior Research Fellow in Agricultural Policy, The Heritage Foundation
- Tony Francois, Senior Attorney, Pacific Legal Foundation
- John Paul Woodley, Principal, Advantus Strategies, LLC
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
In December 2019, the Department of Justice, the U.S. Patent & Trademark Office, and the National Institute of Standards issued a joint policy statement on the legal remedies that should be available for infringement of a valid patent on standardized technologies, known in patent law as standard-essential patents (SEP). The 2019 DOJ-USPTO-NIST policy statement replaces a 2013 policy statement on SEP remedies by the DOJ and USPTO that had been construed by some government officials and courts as asserting that a patent owner seeking or receiving an injunction for infringement of its SEP could violate the antitrust laws. The 2019 policy statement reaffirms that there are no special rules for owners of SEPs in receiving injunctions for ongoing infringement of their valid patents, and that when licensing negotiations fail, the full range of legal remedies for all patent owners should be available for owners of SEPs.
The 2019 policy statement is a significant development in the ongoing policy and legal disputes over the scope of patent rights on standardized technologies used throughout the world in smartphones, computers, and even coffee machines and automobiles. This teleforum will discuss what the 2019 policy statement means for innovators of groundbreaking, foundational technologies, for implementers of these technologies in products, and for consumers.
Featuring:
- David Jones, Executive Director, High Tech Inventors Alliance
- Kristen Osenga, Professor of Law, University of Richmond School of Law
- Brad Watts, Majority Chief Counsel and Staff Director, United States Senate Committee on the Judiciary, Subcommittee on Intellectual Property
- [Moderator] Adam Mossoff, Professor of Law, Antonin Scalia Law School, George Mason University
Visit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.
Public notice and comment on rulemaking is a core requirement of the Administrative Procedure Act, and creates the administrative record on which any subsequent judicial review will be based. Yet many people (even people who take the trouble to vote) seem to think that commenting on rules is difficult or futile, and therefore don’t participate – even when they care about the outcome. This live podcast will discuss the practical mechanics of tracking the development of rules and filing timely comments; in fact, timely filing is about the only legal requirement for getting comments onto the record. It will describe the sorts of comments that tend to be effective in persuading an agency, including comments made directly by affected small entities without professional representation. It will also explain the concept of a “Public Interest Comment” which argues, not on behalf of any particular party or cause (however worthy), but in favor of a balanced resolution of the conflicting considerations that an agency must take into account.
Featuring:
- Susan Dudley, Director, GW Regulatory Studies Center and Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, George Washington University
- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
- Brian F. Mannix, Research Professor, Regulatory Studies Center, George Washington University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
In this episode, Ashley Baker and Neil Chilson discuss the implications for data security under recently-enacted privacy laws. Although data privacy regulations may shield your data from companies that seek to use it for commercial purposes, certain legal requirements found in these regulations can leave your sensitive information vulnerable to bad actors. Strict data privacy rules such as California’s CCPA and the European Union’s GDPR may be exploited by hackers and others who wish to gain access to someone’s personal information. Baker and Chilson discuss data security considerations for privacy laws, the importance of defining and addressing consumer harms, and why lawmakers should prioritize cybersecurity over data privacy.
Featuring
- Ashley Baker, Director of Public Policy, The Committee for Justice
- Neil Chilson, Senior Research Fellow for Technology and Innovation at the Charles Koch Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Related links:
Explainer Episode 9 – Biometric Information Privacy Act https://regproject.org/explainer-ep-9/
Explainer Episode 6 – Regulating Biometric Access Technologies https://regproject.org/explainer-ep-6/
This podcast features audio from a recent event held at the University of California, Berkeley, featuring the insights of Richard Epstein and Daniel Farber. Epstein and Farber go to the philosophical roots of administrative law in order to get to the heart of present-day debates.
Featuring:
- Richard Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
- Daniel Farber, Sho Sato Professor of Law, Co-Director, Center for Law, Energy &, California-Berkeley Law
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Amazon Web Services, Inc. (Amazon) has claimed in a lawsuit in the United States Court of Federal Claims that unlawful intervention by President Donald Trump deprived it of a $10 billion decade-long contract with the Department of Defense (DoD) for a cloud computing system known as the Joint Enterprise Defense Infrastructure (JEDI). Long considered the favorite, Amazon nevertheless lost the award to Microsoft Corp. in a competitive bidding process that Amazon claims was arbitrary and capricious and tainted by President Trump’s open feud with Amazon company founder Jeffrey Bezos.
Dan Kelly, Alexander Major and Franklin Turner, nationally recognized commentators and practitioners in the federal bid protest arena, unpack what we know about Amazon’s case, and discuss the possible grounds, laws and regulations governing mandates for competitive contracting by federal agencies.
Featuring:
- Alexander Major, Partner and Co-Leader of Government Contracts & Export Controls Practice Group, McCarter & English LLP
- Franklin Turner, Partner and Co-Leader of Government Contracts & Export Controls Practice Group, McCarter & English LLP
- Moderator: Daniel Kelly, Partner, Government Contracts & Export Controls Practice Group, McCarter & English LLP
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Gig-economy companies like Uber, Lyft, DoorDash, and others have disrupted sectors across the economy. They’ve done so in part by using new technology to tap a large pool of independent workers. This approach has not only proven to be a winning business model, it has also created a way back into the workforce for millions of people. Students, ex-offenders, single parents, and others excluded from traditional employment have found, in gig work, a new way to earn a living.
Despite this, gig companies have drawn fire from many quarters, including academics, labor unions, and most importantly state legislators. Some state legislators have proposed new regulations that, while potentially improving gig workers’ compensation and benefits, could threaten the very business models that allow for this independent work in the first place. Indeed, some states, most notably California, have even proposed converting all gig workers into traditional employees.
Alex MacDonald discusses their implications for the future of gig work and, perhaps, a better way forward.
Featuring:
- Alexander MacDonald, Littler Mendelson PC
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In this episode, Adam Thierer and Caleb Watney discuss the emerging questions surrounding the progress of driverless car technology and its regulation.
Featuring:
- Adam Thierer, Senior Research Fellow, Mercatus Center, George Mason University
- Caleb Watney, Fellow, Technology and Innovation, R Street Institute
Visit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.
Do recent state privacy rules, like California's CCPA, impinge on free speech, violate the dormant commerce clause, or are they preempted by other federal laws? Ian Adams and Jennifer Huddleston discuss.
Featuring:
- Ian Adams, Vice President of Policy, TechFreedom
- Jennifer Huddleston, Research Fellow, Mercatus Center, George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
In Students for Fair Admissions, Inc. v. Harvard, it is alleged that Harvard admissions discriminated against Asian applicants. In this episode, Pacific Legal Foundation attorney Wen Fa discusses the case, the legal context in which the case was brought, and the case’s potential implications.
Featuring:
Wen Fa, Attorney, Pacific Legal Foundation
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The Federal Housing Finance Agency (FHFA) oversees the administration of both Freddie Mac and Fannie Mae. What's next for the agency? What are the priorities that the agency should be pursuing? This episode features remarks from FHFA Director Mark Calabria and a discussion of the issues with reform by our panelists.
Featuring:
- Mark Calabria, Director, Federal Housing Finance Agency
- Edward Pinto, Resident Fellow and Director, AEI Housing Center, American Enterprise Institute
- Peter Wallison, Senior Fellow, Arthur F. Burns Fellow in Financial Policy Studies, American Enterprise Institute
- [Moderator] Alex J. Pollock, Principal Deputy Director, Office of Financial Research, U.S. Department of Treasury
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In this episode, experts discuss Section 230 of the Communications Decency Act, which protects platforms from liability for the content produced by users. Some legislators have recently floated the idea of enforcing 'platform neutrality' in a way that, according to critics, threatens the sort of free speech Section 230 is meant to protect. The experts featured in this episode have a lively discussion on these and other topics.
Featuring:
- Diane Katz, Senior Research Fellow in Regulatory Policy, The Heritage Foundation
- Jeff Kosseff, Assistant Professor of Cybersecurity Law, United States Naval Academy
- [Moderator] Ashkhen Kazaryan, Director of Civil Liberties, TechFreedom
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
This episode explores the implications of private rights of action under laws like Illinois' Biometric Information Privacy Act. Are the parameters around these private rights of action too vague and susceptible to abuse? Experts discuss this question and more.
Featuring:
- Ashley Baker, Director of Public Policy, Committee for Justice
- Jennifer Huddleston, Research Fellow, Mercatus Center, George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Passed in 1977, the Community Reinvestment Act (CRA) was intended to encourage banks and other financial institutions to lend to lower-income individuals in their communities. Has the CRA succeeded in this goal or is there room for improvement? Aaron Klein and Diego Zuluaga weigh in on this important question.
Featuring:
- Aaron Klein, Fellow in Economic Studies and Policy Director, Center on Regulation and Markets, Brookings Institution
- Diego Zuluaga, Policy Analyst, Center for Monetary and Financial Alternatives, Cato Institute
Additional Resources:
- "The Community Reinvestment Act in the Age of Fintech and Bank Competition" (https://www.cato.org/publications/policy-analysis/community-reinvestment-act-age-fintech-bank-competition)
- "Bank-like credit unions should follow bank rules" (https://www.brookings.edu/opinions/bank-like-credit-unions-should-follow-bank-rules/)
- "A tool meant to help minorities buy homes is instead speeding up gentrification in D.C." (https://www.washingtonpost.com/opinions/local-opinions/a-tool-that-helps-minorities-buy-homes-is-speeding-up-gentrification-in-the-district/2019/08/09/10c08366-a744-11e9-9214-246e594de5d5_story.html)
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In this episode, Roger Klein and Adam Broad debate the merits of the increasingly prominent "Medicare for All" proposal for healthcare. The discussion is moderated by Courtney Hughes.
Featuring:
- Roger Klein, Faculty Fellow, Center for Law, Science & Innovation at the Sandra Day O’Connor College of Law at Arizona State University
- Adam Broad, Organizer, Illinois Single Payer Coalition
- [Moderator] Courtney Hughes, Associate Professor, Northern Illinois University’s College of Health and Human Sciences
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In this episode, Ashley Baker and Jennifer Huddleston discuss the implications of the famous privacy case, in which the Supreme Court decided that the warrant-less seizure of the plaintiff's cell phone records violated his Fourth Amendment rights.
Featuring:
Ashley Baker, Director of Public Policy, Committee for Justice
Jennifer Huddleston, Research Fellow, Mercatus Center, George Mason University
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With emerging debates around facial recognition technology, the issue of regulating biometric access technologies has become more prominent. San Francisco, notably, has banned government use of facial recognition, and states like Illinois and Texas have also begun more aggressive regulations on biometrics. The implications of these technologies for civil rights and the rules to limit their use are explored and explained in this podcast.
Featuring:
- Ashley Baker, Director of Public Policy, Committee for Justice
- Jennifer Huddleston, Research Fellow, Mercatus Center, George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
The oral argument for County of Maui, Hawaii v. Hawaii Wildlife Fund was heard before the Supreme Court on November 6, 2019. The issue at hand is: "Whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater." This teleforum previews the major issues of the case.
Featuring:
Brianne Gorod, Chief Counsel, Constitutional Accountability Center
Glenn E. Roper, Attorney, Pacific Legal Foundation
[Moderator] Prof. Donald Kochan, Parker S. Kennedy Professor in Law, Chapman University
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The broadcasting market used to be straightforward. It functioned on a linear model consisting of content companies, distribution channels and audiences. The advent of the internet disrupted that model, placing new competitive pressures on traditional players and forcing them to rethink their strategy.
Vertical integration – the common ownership or control of both programming and distribution undertakings – has been hailed as a useful strategy for legacy broadcasters to survive in the new digital environment. Regulators and the courts, to a large extent, have endorsed this rationale. Earlier this year, AT&T fended off an antitrust challenge to its merger with Time Warner, successfully claiming that the merger was necessary to take on platforms such as Netflix, Facebook and Google.
Has vertical integration succeeded in making the broadcasting sector more innovative and competitive? Are additional regulatory safeguards necessary to prevent and sanction anti-competitive conduct? What can the United States learn from Canada, a broadcasting market with higher levels of vertical integration and cross-media ownership?
Featuring:
- Brad Danks, Chief Executive Officer, OUTtve Lee,
- Will Rinehart, Director of Technology and Innovation Policy, American Action Forum
- [Moderator] Paul Beaudry, Director of Broadband Policy and Regulatory Affairs, TELUS Communications Inc.
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In this episode, Adam Thierer and Brent Skorup speak with Senator Mike Lee on the current state of drone regulation. The senator speaks to his proposal for a cooperative, federal solution to regulatory holdup in drone technology innovation.
Additional Resources:
Senator Lee's proposed Drone Integration and Zoning Act: https://www.lee.senate.gov/public/index.cfm/2019/10/sen-lee-introduces-drone-integration-and-zoning-act
Brent Skorup, "To Kickstart Drone Deliveries, Give Cities and States Regulatory Flexibility": https://www.mercatus.org/bridge/commentary/kickstart-drone-deliveries-give-cities-and-states-regulatory-flexibility
Featuring:
- Mike Lee, United States Senator, Utah
- Brent Skorup, Senior Research Fellow, Mercatus Center, George Mason University
- [Moderator] Adam Thierer, Senior Research Fellow, Mercatus Center, George Mason University
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Last term in Gundy v. U.S., without Justice Kavanaugh the Court was split between a restoration of a substantial limitation on the administrative state and the status quo. In this case, as Justice Gorsuch described it, Congress gave “the nation’s chief prosecutor… the power to write his own criminal code governing the lives of a half-million citizens.” This case has enormous implications for how much power federal bureaucrats can be given by Congress. The panelists will discuss this case and a potential future without such extensive power for federal agencies.
Featuring:
Devin Watkins, Attorney, Competitive Enterprise Institute
Moderator: Prof. Christopher J. Walker, Professor of Law, The Ohio State University Moritz College of Law
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With the conclusion of the Federal Trade Commission’s 21st Century Hearings, the agency is finalizing several reports concerning the state of competition in the US, vertical mergers, the consumer welfare standard, and privacy. This panel summarizes the issues the FTC explored in the hearings and discuss their views of potential FTC output.
Featuring:
- Maureen Ohlhausen, Partner, Baker Botts LLP and former FTC Acting Chairman
- Duane Pozza, Partner, Wiley Rein LLP
- Moderator: Svetlana Gans, Vice President and Associate General Counsel, NCTA — The Internet & Television Association
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In this episode, Paul Rubin, the world’s leading expert on cooperative capitalism, discusses his new book, The Capitalism Paradox: How Cooperation Enables Free Market Competition. Rubin explains how we should think about markets, economics, and business and makes a case that this book is an indispensable tool for understanding and communicating the vast benefits the free market bestows upon societies and individuals. Moderator Susan Dudley's review of the book may be read here.
Featuring:
- Prof. Paul H. Rubin, Samuel Candler Dobbs Professor of Economics Emeritus, Emory University
- Moderator: Prof. Susan Dudley, Director, GW Regulatory Studies Center & Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, George Washington University
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What happens when a state agency uses without authorization copyrighted videos and pictures of Blackbeard’s famous pirate ship, the Queen Ann’s Revenge? Is this an act of state-sanctioned piracy for which the copyright owner can sue for the violation of his rights, or is the state immune from such a lawsuit under its inherent sovereign immunity? This is the question that the Supreme Court will answer in Allen v. Cooper, with oral arguments scheduled for November 5, 2019.
In this case, North Carolina argues that it is immune from any copyright infringement lawsuits given its state sovereign immunity under the 11th Amendment. Rick Allen maintains in his lawsuit that North Carolina is liable for its unauthorized use of his video footage and photographs of the Queen Ann’s Revenge given that Congress validly abrogated the state’s sovereign immunity in the Copyright Remedy Clarification Act (CRCA). In Allen v. Cooper, the Supreme Court will determine whether the CRCA was a valid statutory abrogation of North Carolina’s state sovereign immunity. In this teleforum, experts on varying sides of the issue will discuss the case and its impact on state officials and the use of copyrighted materials by state agencies and other institutions.
Featuring:
Michael Bynum, Editor, Epic Sports
Terry Hart, VP, Legal Policy and Copyright Counsel, Copyright Alliance
Matthew R. McGuire, Counsel, Hunton Andrews Kurth
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With the advent of mobile devices, ubiquitous home laptop, tablet and iPad computers, content streaming and more, the need for wireless service is forever on the rise in the United States. Industry experts note that capacity limits are being stretched. With the arrival of the "Internet of Things," linking the internet with everything from nanny cams to home/office climate systems to autonomous vehicles, is there a clear and coherent path forward on the assignment or repurposing of spectrum? Perhaps as importantly, who has the authority and expertise to decide?
Featuring:
- Dean Brenner, Senior Vice President, Spectrum Strategy & Technology Policy at Qualcomm
- Hilary Cain, Director (Group Manager), Technology and Innovation Policy, Toyota North America
- Danielle Piñeres, Vice President & Associate General Counsel, NCTA- The Internet & Television Association
- [Moderator] Prof. Christopher J. Walker, Professor of Law, The Ohio State University Moritz College of Law
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
The Department of Labor administers and enforces more than 180 federal laws, with mandates and regulations that affect workplace activities for about 10 million employers and 125 million workers. Since its creation in 1913, DOL has been in the vanguard of the regulatory state.
This episode, moderated by former Solicitor of Labor Gregory Jacob, features a discussion with Cheryl Stanton, head of DOL’s Wage and Hour Division, and Jonathan Berry, head of its regulatory policy shop, about how President Trump’s Department of Labor is stewarding the responsibilities that have been entrusted to its care.
Featuring:
- Jonathan Berry, Principal Deputy Assistant Secretary for Policy, U.S. Department of Labor
- Cheryl M. Stanton, Administrator, Wage and Hour Division, U.S. Department of Labor
- [Moderator] Gregory Jacob, Partner, O'Melveny & Myers LLP
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In statutes such as the Federal Power Act and Clean Water Act, Congress divided responsibility for oversight of energy generation and transmission projects between federal agencies and the States. In recent years, several States have more aggressively used their perceived statutory and regulatory authority in furtherance of climate change goals, prompting litigation from affected parties and regulatory pushback from the Trump Administration. Our experts will discuss the most recent legal and regulatory skirmishes over the balancing of federal and state jurisdiction over energy policy, including: Judicial rejection of extended consideration of Section 401 certification requests; EPA proposed Clean Water Act regulations; State subsidies for power generation plants and renewable power mandates; and, State-issued rights of first refusal to incumbent utilities to build transmission lines.
Featuring:
- Gordon A. Coffee, Partner, Winston & Strawn LLP
- Prof. Ari Peskoe, Lecturer on Law, Harvard Law School
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Earlier in October, the D.C. Circuit issued its long-awaited opinion in Mozilla v. Federal Communications Commission in which the court largely upheld the Commission’s 2017 Restoring Internet Freedom Order that reversed the Obama Administration’s 2015 decision to apply common carrier regulation to the Internet. While the court upheld the bulk of the agency’s actions as reasonable under the Supreme Court’s rulings in Chevron and Brand X, the court also found that the agency lacked plenary preemption authority over state efforts to regulate the Internet under the FCC’s theory of the case. As such, this case does not mark the end of the net neutrality debate; instead, it simply closes one chapter and opens a new one.
In this episode, a panel of legal and economic experts share their views of the court’s reasoning and of the implications of this case upon the on-going net neutrality debate.
Featuring:
- Russell P. Hanser, Partner, Wilkinson Barker Knauer, LLP
- Prof. Daniel Lyons, Professor of Law, Boston College Law School
- Dr. George S. Ford, Chief Economist, Phoenix Center for Advanced Legal & Economic Public Policy
Studies
- Moderator: Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal & Economic Public
Policy Studies
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This podcast features a fascinating back-and-forth on the implications of new amendments to California's privacy law, CCPA (California Consumer Privacy Act). Is California setting the law of the land? How will the FTC respond? What will this mean for interstate online commerce? These and other questions are explored in the episode.
Featuring:
- Ian Adams, Vice President of Policy, TechFreedom
- Joseph Jerome, Policy Counsel, Privacy & Data, Center for Democracy & Technology
- [Moderator] Adam Thierer, Senior Research Fellow, Mercatus Center, George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
On September 10, 2019, The Federalist Society hosted a luncheon cosponsored with the Center for Equal Opportunity (CEO). CEO released and presented a new study and report entitled “Race and Ethnicity in Undergraduate Admissions at Five Virginia Universities," which examined how admissions programs at five Virginia public universities (University of Virginia, College of William & Mary, Virginia Tech, James Madison University, and George Mason University) preference certain applicants based on race. The results of the study and its implications for the broader academic discussion of racial preferences in college admissions were discussed by the panelists.
Featuring:
- Todd Gaziano, Chief of Legal Policy and Strategic Research and Director, Center for the Separation of Powers, Pacific Legal Foundation
- Althea Nagai, Research Fellow, Center for Equal Opportunity
- Theodore M. Shaw, Julius L. Chambers Distinguished Professor of Law and Director of the Center for Civil Rights, University of North Carolina School of Law
- Hans A. von Spakovsky, Senior Legal Fellow, The Heritage Foundation
- Moderator: Linda Chavez, Chairman, Center for Equal Opportunity
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The status of independent contractors in California has been hotly debated over the past year, with the landmark California Supreme Court decision in Dynamex and with the resulting debate over California’s Assembly Bill 5. The ABC test, if ultimately adopted in the Golden State, would reclassify as employees millions of workers who currently operate as independent contractors. The impact on California's economy – the fifth largest in the world – could be extraordinary.
In this episode, Bruce J. Sarchet gives an overview of the ABC Test; an analysis of the provisions of California’s AB 5; a discussion of the potential impacts on the California and U.S. economy should the bill be passed into law; and options for compliance.
Featuring:
- Bruce J. Sarchet, Shareholder, Littler Mendelson P.C.
Visit our website – ww.RegProject.org – to learn more, view all of our content, and connect with us on social media.
What are the costs and benefits of occupational licensing? Why do many believe that the laws around licensing ought to be reformed, and what has Arizona been doing to address these concerns? Jon Riches of the Goldwater Institute gives an overview of this issue as it has played out in the Grand Canyon State.
Featuring:
- Jon Riches, Director of National Litigation, Goldwater Institute
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Is “investor protection” coordinated sufficiently with “promotion of capital formation”? This teleforum will consider this question in connection with recent public rulemaking developments at the Securities and Exchange Commission.
Public companies in the United States are subject to requirements (i) to establish and maintain internal control over financial reporting and (ii) to have their external auditors attest to, and report on, management’s assessment of these internal controls. These requirements, which some have criticized as imposing excessive costs on smaller public companies, were introduced in part as a reaction to corporate scandals. The Securities and Exchange Commission recently proposed amendments to the existing regulations that would, if adopted, lighten the regulatory burdens for smaller reporting issuers. Some proponents of the amendments argue that exempting smaller issuers from some requirement is critical to promoting their capital formation activities; some opponents contend that the proposed amendments could jeopardize the investor-protection elements of the capital markets.
Featuring:
John Berlau, Senior Fellow, Competitive Enterprise Institute
Wes Bricker, US & Mexico Assurance Leader and Vice Chair, PwC
Prof. J.W. Verret, Associate Professor of Law, Antonin Scalia Law School
[Moderator] C. Wallace DeWitt, Senior Counsel, Allen & Overy LLP
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In this episode, Alexander Major and Franklin Turner, nationally recognized commentators in this area, will discuss the recent changes to critical requirements promulgated by the National Institute of Standards and Technology, the auditing effort underway by the Defense Contract Management Agency, and DoD’s looming Cybersecurity Maturity Model Certification (CMMC) program. The discussion will be moderated by Dan Kelly.
Featuring:
- Alexander Major, Partner and Co-Leader of Government Contracts & Export Controls Practice Group, McCarter & English LLP
- Franklin Turner, Partner and Co-Leader of Government Contracts & Export Controls Practice Group, McCarter & English LLP
- [Moderator] Daniel Kelly, Partner, Government Contracts & Export Controls Practice Group, McCarter & English LLP
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
"Techlash" refers to a growing public concern over the behavior of big technology companies and the call for government action to curtail what are seen as abusive practices. Figures on the right and the left alike have expressed concerns of over privacy, free speech, and fairness on online platforms. Most recently, 50 attorneys general have launched an investigation into Google for violations of antitrust law.
In this episode, Adam Thierer moderates a discussion between Geoffrey Manne and Hal Singer on whether these concerns represent genuine consumer harm and whether antitrust law is an appropriate means to address them.
Featuring:
- Geoffrey Manne, President and Founder, International Center for Law & Economics
- Hal Singer, Managing Director, Econ One
- [Moderator] Adam Thierer, Senior Research Fellow, Mercatus Center, George Mason University
Resources discussed in today's episode:
- "Concluding Comments: The Weakness of Interventionist Claims (FTC Hearings, ICLE Comment 11)" (https://laweconcenter.org/resource/icle-comments-ftc-hearings-on-competition-consumer-protection-in-the-21st-century-summary/)
- "The Real Reason Foundem Foundered" (https://laweconcenter.org/resource/the-real-reason-foundem-foundered/)
- "Google and the Limits of Antitrust: The Case Against the Antitrust Case Against Google" (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1577556)
- "How Big Tech Threatens Economic Liberty" (https://www.theamericanconservative.com/articles/how-big-tech-threatens-economic-liberty/)
- "Sorry, Mr. Delrahim: Big Tech’s Worst Abuses Can’t Be Cured Without Stiffer Regulation" (https://promarket.org/mr-delrahim-big-tech-worst-abuses-cant-be-cured-without-stiffer-regulation/)
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Jon Kotler, a California fan of the London soccer club Fulham FC, wanted to put the letters "COYW" on his license plate. The letters stand for a common phrase that Fulham fans use to support their team: "Come on You Whites!" "White" is meant to refer to the color of Fulham's home kits, but the DMV deemed the acroynym offensive and prevented Kotler from using it.
Kotler filed a federal suit claiming that the DMV had violated his free speech rights. In this short episode, Wen Fa, an attorney in the case, describes the details.
Featuring:
- Wen Fa, Attorney, Pacific Legal Foundation
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The Endangered Species Act has been credited with preventing extinctions but criticized for failing to recover species and imposing unfair burdens on property owners. Recently, the U.S. Fish and Wildlife Service and the National Marines Fisheries Service finalized several new Endangered Species Act regulations intended to improve the law’s implementation and promote species recovery. Lawsuits challenging those regulations are expected from several states and conservation groups.
Featuring:
- Jonathan Wood, Senior Attorney, Pacific Legal Foundation
- [Moderator] Daren Bakst, Senior Research Fellow in Agricultural Policy, The Heritage Foundation
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
In this episode, Jeff Holmstead and Megan Herzog discuss the recent rule change from the EPA on emissions standards. The Affordable Clean Energy plan replaces the Obama-era Clean Power Plan. The reduction in admissions standards has raised new questions: what does the Clean Air Act authorize EPA to regulate, how much discretion does EPA have in regulating emissions, which plan more closely fits the intent of the original law? These and other questions are taken up in this engaging discussion.
Featuring:
- Jeffrey R. Holmstead, Partner, Bracewell LLP
- Megan Herzog, Special Assistant Attorney General, Massachusetts Attorney General's Office
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In this inaugural Tech Roundup podcast, experts discuss various questions raised by "deep fake" technology, in which machine learning algorithms are used to create synthetic videos and photos. What are the potential societal and political implications of their emergence? What challenges might they present to regulators?
Join Professor Robert Chesney (co-author of "Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security"), Matthew Feeney, and Will Rinehart as they explore the implications of this emerging technology.
Featuring:
- Robert M. Chesney, James A. Baker III Chair in the Rule of Law and World Affairs and Associate Dean for Academic Affairs, The University of Texas at Austin School of Law
- Matthew Feeney, Director, Project on Emerging Technologies, Cato Institute
- [Moderator] Will Rinehart, Director of Technology and Innovation Policy, American Action Forum
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In 2018, the California Superior Court announced a new test for determining whether a worker is an employee or an independent contractor. In this Explainer podcast episode, Luke Wake of the National Federation of Independent Businesses breaks down the case and its implications for small business owners in California.
Featuring:
- Luke Wake, Senior Staff Attorney, NFIB Small Business Legal Center
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In this inaugural episode of the Regulatory Transparency Project's Explainer podcast series, Ann Carlson and James Coleman discuss the merits and implications of the Green New Deal.
What is the Green New Deal, what are its aims, and how might it achieve them? Is the proposal realistic? How does it compare to landmark pieces of environmental legislation from the past decades?
These and other questions are explored in this short podcast.
Featuring:
- Ann Carlson, Shirley Shapiro Professor of Environmental Law and Faculty Co-Director of the Emmett Institute on Climate Change and the Environment, UCLA School of Law
- James Coleman, Associate Professor of Law, Southern Methodist University Dedman School of Law
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Title III of the Americans with Disabilities Act requires public accommodations be accessible to the disabled community. Since its enactment in 1991, it has been understood that any store, restaurant, theater, hotel facility, school, or other building private entities own or lease and make available to the public meet certain requirements for disability access.
Plaintiffs attorneys have been aggressive in enforcing the ADA against all types of physical businesses for years. And now we are seeing a new frontier of litigation - websites. Banks, hotels, service providers, and retailers of all types are beginning to see lawsuits alleging their websites are not accessible to the disabled.
Karen Harned will provide the background on this new trend in ADA litigation, the current state of the law, and highlight a case the Supreme Court is being asked to take this next term on the issue.
Featuring:
- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
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The strictures of the Appointments Clause are receiving renewed attention in the courts, including the Supreme Court. A year ago, the High Court ruled that the SEC’s administrative law judges must be appointed in conformity with this clause, and it has placed another Appointments Clause case on the docket for its next term. In Buckley v. Valeo (1976), the Court held that rulemaking was a significant government power such that rulemakers must be appointed in conformity with the Clause, but it had no reason to address whether rules must be issued by principal officers or could also be issued by inferior officers.
On behalf of nine vaping retailers, Pacific Legal Foundation is challenging the FDA’s "Deeming Rule" issued by a career employee, Leslie Kux. A new research study of HHS rules over a 17-year period, also by PLF, found that nearly two-thirds of HHS regulations were issued by non-Senate-confirmed staff. Within FDA, 98% of its rules (1,860 of them) were issued by civil service employees in career positions like that held by Ms. Kux. In the pending litigation, FDA argues that Ms. Kux was also an inferior officer when she issued rules, and that inferior officers may lawfully issue such binding rules, even if no supervisor may subsequently change them without a new rulemaking process.
The speakers examine a variety of topics related to the subdelegation of rulemaking power, including the creation of offices by department heads and who within those offices can lawfully exercise rulemaking power.
Featuring:
Todd F. Gaziano, Chief of Legal Policy and Strategic Research and Director, Center for the Separation of Powers, Pacific Legal Foundation
Prof. Anne Joseph O'Connell, Adelbert H. Sweet Professor of Law, Stanford Law School
[Moderator] Prof. Kristin E. Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law School
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The Federal Reserve plays a central role in the nation’s payment systems. Reserve banks keep currency in circulation to meet demand, provide check collection services to banks, operate payment systems, and provide financial services to the United States government and foreign institutions.
The Federal Reserve is currently exploring ways to support faster payments in the U.S. The potential actions would facilitate real-time interbank settlement of faster payments. Proponents feel the actions may assist smaller banks and credit unions to service local communities, while detractors raise concerns about interoperability, the ability to exchange messages among different instant-payment systems, and other issues. This teleforum will address these topics and much more.
Featuring:
Aaron Klein, Fellow in Economic Studies and Policy Director, Center on Regulation and Markets, Brookings Institution
George Selgin, Senior Fellow and Director, Center for Monetary and Financial Alternatives, Cato Institute
[Moderator] J.W. Verret, Associate Professor of Law, Antonin Scalia Law School, George Mason University
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On June 18, 2019, the Federalist Society's Article I Initiative and Regulatory Transparency Project hosted a panel on "Agency Rulemaking: Unnecessary Delegation or Indispensable Assistance?" at the National Press Club in Washington, DC.
In his recent article, “Strategic Institutional Positioning: How We Have Come to Generate Environmental Law Without Congress,” published in the Texas A&M Law Review, Donald Kochan lays out the argument that delegation of authority to agencies serves the interests of both sides of Congress. Those ostensibly elected to oppose further regulation can argue that any proposed rule changes are out of their control. Conversely, representatives elected to increase regulation can blame agency heads for not following the intent of the authorizing statute. However, both sides avoid blame by the electorate.
What are the advantages and disadvantages of such a system? Should specialized bureaucrats do the lion’s share of rulemaking? Or should elected Senators and Congressman, often without the same level of expertise, write the rules that govern our nation?
Featuring:
- Andrew Grossman, Partner, Baker & Hostetler LLP and Adjunct Scholar, The Cato Institute
- Prof. Donald Kochan, Professor in Law and the Associate Dean for Research & Faculty Development, Chapman University Dale E. Fowler School of Law
- Prof. Robert Percival, Professor of Law and Director, Environmental Law Program, University of Maryland School of Law
- Brianne Gorod, Chief Counsel, Constitutional Accountability Center
- [Moderator] Jeff Holmstead, Partner, Bracewell LLP
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Last week the Supreme Court decided the much-anticipated Kisor v. Wilkie case. The Court had granted certiorari in Kisor to decide whether to overrule Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), and Auer v. Robbins, 519 U.S. 452 (1997). Seminole Rock and Auer are often cited for the proposition that when an administrative agency promulgates a regulation and the regulation is ambiguous, a reviewing court must give “controlling weight” to the agency’s interpretation of the regulation unless the interpretation is plainly erroneous or is inconsistent with the regulation. A number of the Court’s members had cast doubt on the soundness of the Seminole Rock/Auer deference doctrine in recent years, and many observers have predicted that the doctrine’s days are numbered.
Karen Harned and Stephen Vaden discuss that morning’s highly-fractured decision in Kisor and its potential implications — including for the Chevron deference doctrine that applies to agency interpretations of statutory provisions.
Featuring:
- Karen Harned, Executive Director, NFIB Small Business Legal Center
- Stephen Vaden, General Counsel, United States Department of Agriculture
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The U.S. Supreme Court’s decision in Gundy v. United States disappointed some observers who were hoping that the Court would use the case to reinvigorate the nondelegation doctrine. Will the 4-1-3 decision here leave the status quo intact or embolden lower courts to identify more nondelegation problems? Will Congress view this outcome as an invitation to delegate more decisions about the scope of the criminal law to the Attorney General? Do Justice Alito’s concurrence and the strong dissent from Justice Gorsuch (joined by The Chief Justice and Justice Thomas) signal that the nondelegation doctrine will soon be revived? These and other questions are discussed in this podcast.
Featuring:
- Mark Chenoweth, Executive Director and General Counsel, New Civil Liberties Alliance
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On June 4, 2019, a Ninth Circuit panel heard oral argument in a high-profile interlocutory appeal in Juliana v. United States, regarding whether the U.S. Constitution gives rise to cognizable constitutional and federal common law claims against the Executive Branch for actions alleged to cause or contribute to climate change.
The Juliana plaintiffs – most of whom were minor children when the suit was filed in 2015 – argue, inter alia, that the federal government has violated their fundamental right to a stable climate grounded in the Due Process and Equal Protection Clauses of the Fifth Amendment to the Constitution. The plaintiffs also argue that the government has breached its duty to hold the atmosphere in trust under federal common law principles. The federal government argues that the plaintiffs lack standing; that the case is not justiciable in any federal court under Article III of the U.S. Constitution; that the plaintiffs’ claims were not properly brought pursuant to the Administrative Procedure Act; and that the plaintiffs have failed to state a claim on the merits upon which relief can be granted.
Featuring:
- James R. May, Distinguished Professor of Law, Widener University Delaware Law School
- Damien M. Schiff, Senior Attorney, Pacific Legal Foundation
- [Moderator] Jonathan H. Adler, Johan Verheij Memorial Professor of Law; Director, Coleman P. Burke Center for Environmental Law, Case Western Reserve University School of Law
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On May 8, 2019, the Ninth Circuit issued a 2-1 decision in Cedar Point Nursery v. Shiroma. In Cedar Point, California agricultural growers asked the court to invalidate an Agricultural Labor Relations Board regulation that allowed union organizers to come on to the growers’ property to solicit workers to join the union for 3 hours per day and 120 days per year. The growers contend that the regulation amounts to a physical taking under the Fifth Amendment. The Ninth Circuit majority rejected that argument, and held that the physical takings doctrine did not apply because the union organizers were not allowed around-the-clock access to the growers’ property.
In this podcast, hear reactions from Wen Fa and Bethany Berger.
Featuring:
- Wen Fa, Attorney, Pacific Legal Foundation
- Prof. Bethany Berger, Wallace Stevens Professor of Law, University of Connecticut School of Law
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LIBOR is a hugely important interest rate benchmark, used globally and embedded in over $200 trillion of financial contracts. It has its notable shortcomings, including having been subject to scandalous attempts at manipulation. Financial regulators, notably the New York Fed, want it to disappear and be replaced by another index. But can the regulators succeed in their effort? Will LIBOR disappear and be replaced? By SOFR or something else? Or will it survive, perhaps as one of multiple competing benchmarks?
Dr. Oonagh McDonald thoroughly explores LIBOR's evolution, scandals, and the issues of its future in her new book, "Holding Bankers to Account." Oonagh will present the lessons of history and the state of current debates. Gary Kalbaugh of ING Financial and Columbia Law School and Alex Pollock of the R Street Institute will be discussants.
Featuring:
- Prof. Gary Kalbaugh, Special Professor of Law at the Maurice A. Deane School of Law
- Alex J. Pollock, Distinguished Senior Fellow, R Street Institute
- Dr. Oonagh McDonald, CBE, Philosophy Lecturer at the University of Bristol, Member of the British Parliament 1976-1987, Member of the Front Bench Treasury Team, Author of Several Books, Including her Newest One "Holding Bankers to Account"
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One of the final acts of former Bureau of Consumer Financial Protection (CFPB) Director Richard Cordray before he left to run for Governor of Ohio in 2017 was the issuance of a comprehensive rule governing payday loans, auto title loans, and other small dollar loans. The centerpiece of the rule would have imposed a new "Ability to Repay" (ATR) underwriting standard on providers of these small dollar products for extensions of credit to repeat borrowers. The Rule was scheduled to go into effect in August 2019. In January of this year, however, new CFPB Director Kathy Kraninger announced a Notice of Proposed Rulemaking that would rescind the ATR requirement. This live podcast discusses the logic of the 2017 Rule and the reasons for the CFPB's reconsideration this year.
Featuring:
- Prof. Todd Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School at George Mason University
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Recently, members of the United States Senate and United States House of Representatives have introduced the "Loan Shark Prevention Act," which imposes a nationwide 15% interest rate ceiling on all consumer credit products, from credit cards to payday loans. They also propose to empower the United States Post Office to engage in the practice of consumer retail banking. This Teleforum examines the economics of interest-rate ceilings on consumer credit and the historical experience with such proposals as well as discussing the proposal to create a Post Office bank.
Featuring:
- Wayne Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association
- Todd Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School
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This episode brings you the audio from the opening panel of the Federalist Society's 7th annual Executive Branch Review Conference. The panel featured Counsels from the Department of Transportation, Department of Energy, Department of the Treasury, Department of Agriculture and the EPA. The speakers take stock of the current administration's regulatory reform agenda two years on.
Featuring:
- Hon. Steven G. Bradbury, General Counsel, U.S. Department of Transportation
- Mr. George H. Fibbe, Deputy General Counsel, U.S. Department of Energy
- Hon. Hon. Matthew Z. Leopold, General Counsel, U.S. Environmental Protection Agency
- Hon. Brent J. McIntosh, General Counsel, U.S. Department of the Treasury
- Hon. Stephen A. Vaden, General Counsel, U.S. Department of Agriculture
- [Moderator] Prof. Adam White, Assistant Professor and Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School, George Mason University
- [Introduction] Dean A. Reuter, General Counsel | Vice President & Director, Practice Groups, The Federalist Society
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It is currently a federal crime, under the Bald and Golden Eagle Protection Act, for many Native Americans to possess eagle feathers for religious use. Congress authorized the Department of the Interior (the Department) to permit an exception for eagle feather use for “the religious purposes of Indian tribes” in 1962, yet more than 50 years later the Department’s regulations exclude millions of sincere Native American religious believers. And even Native Americans who are protected (because they are enrolled members of federally recognized tribes) are forced to rely on the “Morton Policy”—an informal memorandum that could be rescinded at any time. Although Native Americans have relied on the Morton Policy for more than 40 years, the Department has never promulgated it as a rule.
In 2014, the Fifth Circuit held that the Department had failed to justify its ban on religious feather possession as required by the Religious Freedom Restoration Act (RFRA). The Department is now considering a Petition for Rulemaking, which proposes to 1) broaden the Morton Policy to include all sincere religious believers who use protected feathers in their religious exercise—as both the Constitution and RFRA require; 2) officially promulgate this policy as a formal rule rather than rely on informal guidance, ending decades of legal limbo for those who worship with feathers; and, 3) empower Native American tribes to help combat the illegal commercialization of federally protected feathers. Join Joe Davis as he addresses the proposed rulemaking and its relationship to evolving First Amendment jurisprudence.
Featuring:
- Joe Davis, Counsel, Becket Fund for Religious Liberty
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Regulation is a pervasive and increasingly a contentious issue in 21st Century America. The propriety of any given regulatory imposition may be debatable; however, in this discussion we address bigger questions about how regulation works as a whole—whether, in the aggregate, regulation at the federal, state and local level is working well, or impacting innovation and economic opportunity. What are the relative benefits of local and state regulation as well the societal costs?
Our co-presenters, Brooks Rainwater (National League of Cities) and Luke Wake (NFIB Small Business Legal Center), will explore whether we should maintain the status quo, seek to scale-back existing regulation, and/or winnow existing regulatory regimes.
Featuring:
- Brooks Rainwater, Senior Executive & Director, Center for City Solutions, National League of Cities
- Luke Wake, Senior Staff Attorney, NFIB Small Business Legal Center
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The Texas Tech Medical School recently approved an agreement with the United States Department of Education's Office for Civil Rights, to end the use of racial preferences in their admissions process. The agreement was reached after over a decade of negotiation, initiated by a complaint filed by the Center for Equal Opportunity against Texas Tech in 2004. The agreement is a promising sign for opponents of racial preferencing in school admissions process, and could have significant implications for the future.
Roger Clegg joins us to discuss the recent agreement, and its implications.
Featuring:
- Roger Clegg, President and General Counsel, Center for Equal Opportunity
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This Deep Dive episode brings you the audio from the final panel at the Pepperdine Law Review's 2019 Symposium "Regulating Tech: Present Challenges and Possible Solutions". In this panel, leading thinkers from across the emerging tech space discuss the regulatory environment for everything from drones to ridesharing.
Featuring:
- William Goodwin, Head of Policy, Regulatory, and Legal, Skyryse
- Ryan Hagemann, Senior Policy Fellow at International Center for Law and Economics
- Brooks Rainwater, Senior Executive & Director, Center for City Solutions, National League of Cities
- Caleb Watney, Fellow, Technology & Innovation, R Street Institute
- [Moderator] Gregory S. McNeal, Professor of Law and Public Policy, Pepperdine University and Co-Founder, AirMap
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On February 14, 2019, the Environmental Protection Agency and the U.S. Army Corps of Engineers published a proposed rule defining “waters of the United States” under the Clean Water Act (CWA). This is a critical definition because it clarifies the waters that are regulated under the CWA.
For decades, the EPA and Corps have struggled to come up with a proper definition that is both consistent with the plain language of the statute, respects the state role in addressing water pollution, and is consistent with the rule of law. Does the new proposed rule address these concerns? What are some of the concerns with the proposed rule? How should the EPA and the Corps define key terms such as “tributaries” and “adjacent wetlands?” Should a final rule include intermittent waters?
Featuring:
- Deidre Duncan, Partner, Hunton Andrews Kurth LLP
- Tony Francois, Senior Attorney, Pacific Legal Foundation
- [Moderator] Daren Bakst, Senior Research Fellow in Agricultural Policy, Roe Institute for Economic Policy Studies, The Heritage Foundation
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Cryptocurrencies have been around for 10 years, but there remains significant ambiguity in the tax consequences of their use. A recent report by Coin Center identifies six of those ambiguities and recommends approaches to resolving them. James Foust, the report's author, will provide an overview of what is and is not known, and suggested actions that Congress and the IRS could take to fill the gaps.
Topics covered will include:
- What guidance the IRS has published to date
- Calculating the fair market value of cryptocurrency
- Determining the cost basis of cryptocurrency dispositions
- Tax implications of network forks and airdropped tokens.
Featuring:
- James Foust, Senior Research Fellow, Coin Center
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After over two years of regulatory inactivity, the Wage and Hour Division of the U.S. Department of Labor recently published three proposals to revise the FLSA regulations – on joint employment, the “white collar” overtime exemptions, and the regular rate/overtime calculation. All three will have a significant impact on how employees are classified and paid. In its Notice of Proposed Rulemaking (NPRM) on joint employment, the DOL proposes to adopt the Ninth Circuit’s four-part Bonnette test. The NPRM on the overtime exemptions proposes to increase the minimum weekly salary that employers must pay to exempt employees from $455 to $679, formally revoking the 2016 Final Rule raising the minimum to $913 which was enjoined by a Texas District Court. Finally, the DOL’s NPRM on the regular rate will clarify the types of compensation that employers must include in (and may exclude from) the overtime compensation. Join Tammy McCutchen, former Administrator of the DOL’s Wage & Hour Division, for a briefing on all three proposed regulations.
Featuring:
- Tammy McCutchen, Principal, Littler Mendelson PC
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Most people would be surprised to discover that music is among the most regulated of all the products and services they enjoy each day. Through a combination of historical accidents, momentum, and politics, the U.S. government has ended up strictly controlling the prices that radio stations, streaming services, and others pay to use music, and also regulating the terms of sale. This strict control has been in place since 1941 as a result of consent decrees that settled antitrust lawsuits brought by President Roosevelt's Department of Justice. As a result, a handful of judges determine how songwriters and composers get paid for the use of their music and how they can do business.
The 77-year-old consent decrees were originally designed to regulate a marketplace that faded into history a long time ago. They pre-date streaming services, the internet, commercial FM radio, and even the birth of rock, hip-hop, and most other modern popular music genres. The music business has evolved and changed many times in the intervening years, but the consent decrees march on determining how songwriters are compensated.
The Department of Justice has recently announced a review of aged consent decrees, with Assistant U.S. Attorney General Makan Delrahim targeting the music licensing consent decrees for particular scrutiny.
Featuring:
- Kristen Osenga, Professor of Law, University of Richmond School of Law
- Mark Schultz, Professor of Law, Southern Illinois University School of Law
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Senator Elizabeth Warren recently claimed that big tech companies like Amazon, Google, and Facebook have grown into monopolies that make it effectively impossible for smaller competitors to gain a foothold in the market. As a potential fix, she proposed that the government should unwind past anti-competitive mergers. There is fierce debate about governmental oversight of big tech companies and the proper role of the federal government in promoting consumer welfare and market competition. In this episode of the Fourth Branch Podcast, Neil Chilson and Charlotte Slaiman will explore the surrounding debate.
Featuring:
- Neil Chilson, Senior Research Fellow for Technology and Innovation, Charles Koch Institute
- Charlotte Slaiman, Policy Counsel for Competition, Public Knowledge
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This Deep Dive episode brings you the audio from a recent teleforum co-hosted by the Regulatory Transparency Project and the Federalist Society's Environmental Law & Property Rights Practice Group.
This episode deals with a pending lawsuit in the Western District of Washington: Lighthouse Resources v. Inslee. This case, which involves a dispute over permitting construction for a coal export terminal on Washington's Columbia river, has important implications for disputes between federal and state jurisdiction in environmental law and regulation.
Featuring:
- Glenn G. Lammi, Chief Counsel, Legal Studies Division and Director, Communications, Washington Legal Foundation
- Donald Kochan, Parker S. Kennedy Professor in Law and Associate Dean for Research & Faculty Development, Chapman University, Dale E. Fowler School of Law
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This Deep Dive episode brings you the audio from the keynote address at the 2019 Pepperdine Law Review Symposium: "Regulating Tech: Present Challenges and Possible Solutions". In this keynote, Roger Alford, Deputy Assistant Attorney General for International Affairs, addresses a number of issues in antitrust regulation and enforcement, including consent decrees, consumer welfare, and the challenges of the emerging global digital markets.
Featuring:
- Roger P. Alford, Deputy Assistant Attorney General for International Affairs
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This Deep Dive episode brings you the recording of a teleforum co-sponsored with the Federalist Society’s Environmental Law practice group.
In this episode, Adam Gustafson and Daniel Farber discuss various approaches to considering co-benefits in the cost-benefit analyses of new air pollution regulations, and whether the standing approach is the most efficient and cost-effective.
Featuring:
- Prof. Dan Farber, Sho Sato Professor of Law and Faculty Director of the Center for Law, Energy, and the Environment, University of California, Berkeley
- Adam Gustafson, Partner, Boyden Gray & Associates PLLC
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This Deep Dive episode brings you the recording of the second panel from the Pepperdine Law Review's 2019 Symposium "Regulating Tech: Present Challenges and Possible Solutions".
In this panel, the speakers debate varying standards for antitrust rule-making and enforcement. The merits of the Neo-Brandeisian "populist" approach are weighed against more recent "consumer-welfare" standards.
Featuring:
- Geoffrey A. Manne, Executive Director, International Center for Law & Economics
- William Rinehart, Director of Technology and Innovation Policy, American Action Forum
- Hal Singer, Managing Director, Econ One
- Joanna Tsai, Vice President, Charles River Associates
- [Moderator] Babette E. Boliek, Chief Economist, Federal Communications Commission and Professor of Law, Pepperdine School of Law
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This Deep Dive episode brings you the recording of the first panel from the Pepperdine Law Review's 2019 Symposium "Regulating Tech: Present Challenges and Possible Solutions".
In this panel, the speakers discuss the implications of internet privacy legislation in both California and Europe on innovation, small businesses, and consumer protection.
Featuring:
- Thomas Hazlett, Hugh H. Macaulay Endowed Professor of Economics, Clemson College of Business
- Matthew R. A. Heiman, Senior Fellow and Associate Director for Global Security, National Security Institute
- Justin “Gus” Hurwitz, Associate Professor of Law and Co-Director of Space, Cyber, and Telecom Law Program, Nebraska College of Law
- Chris Riley, Director, Public Policy, Mozilla
- [Moderator] Anna Hsia, Head of West Coast Office, ZwillGen
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On Wednesday, March 27th, the Supreme Court heard oral argument in Kisor v. Wilkie. The Supreme Court granted certiorari in Kisor to decide whether to overrule Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), and Auer v. Robbins, 519 U.S. 452 (1997). Seminole Rock and Auer are often cited for the proposition that when an administrative agency promulgates a regulation and the regulation is ambiguous, a reviewing court must give “controlling weight” to the agency’s interpretation of the regulation unless the interpretation is plainly erroneous or is inconsistent with the regulation. A number of the Court’s members have cast doubt on the soundness of the Seminole Rock/Auer deference doctrine in recent years. Many observers believe that the doctrine’s days are numbered.
Featuring:
- Karen Harned, Executive Director, NFIB Small Business Legal Center
- Andrew Varcoe, Partner, Boyden Gray & Associates
- [Moderator] Stephen Vaden, General Counsel, United States Department of Agriculture
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This Deep Dive episode brings you the opening address from the Pepperdine Law Review’s 2019 Symposium “Regulating Tech: Present Challenges and Possible Solutions”. The address was delivered by Donald J. Rosenberg, Executive Vice President, General Counsel, and Corporate Secretary at Qualcomm, who spoke on patent law and the dangers of regulatory capture in the emerging tech sector.
Featuring:
- Donald J. Rosenberg, Executive Vice President, General Counsel, and Corporate Secretary, Qualcomm
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This teleforum will consider the U.S. Securities and Exchange Commission’s accredited investor standard. This standard is used as a screen to determine the group of investors eligible to invest in offerings that are exempt from most SEC rules on public offerings and which are the primary fundraising tools of hedge funds and private equity funds. The SEC currently uses a wealth and income-based standard, which raises questions about whether limiting investment opportunities to only high-income individuals is sound government policy. Some critics of this standard have urged the SEC to expand the standard to include individuals with financial experience, but who do not otherwise meet the wealth threshold. Other critics have suggested more aggressive reforms. Supporters of the accredited investor standard, however, have advanced proposals to further restrict the group of eligible investors by increasing the income and net worth requirements. The SEC has promised to revisit the accredited investor standard soon, and this teleforum will consider and debate potential reforms to the rule.
Featuring:
Urska Velikonja, Professor of Law, Georgetown University Law Center, Georgetown University
J.W. Verret, Associate Professor of Law, Antonin Scalia Law School, George Mason University
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Innovations in financial technology have enabled financial services to be provided in new ways and by new competitors, but under old rules. One area of tension is the role of federalism in a world where, thanks to the internet, firms can provide services nationwide at their inception. The balance of authority between the states, who traditionally had primary authority over non-bank lenders and money transmitters and the federal government has been called into question, with some advocating for greater federalization in the interest of efficiency and equity, and others resisting citing concerns about state sovereignty and consumer protection. Federal regulators have also taken note, with the Treasury calling for reforms to streamline fintech regulation and OCC announcing it would offer some non-depository fintech firms the opportunity to get a federal bank charter, which led the states to sue. Come hear a discussion on the state of fintech and federalism and the proper path for the future.
Featuring:
- Brian Knight, Director of Innovation and Governance and Senior Research Fellow, Mercatus Center, George Mason University
- Margaret Liu, Senior Vice President and Deputy General Counsel, Conference of State Bank Supervisors
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January 7, 2019 starts a new leadership era for the Federal Housing Finance Agency, as the new Acting Director from the Trump Administration, Joseph Otting, takes office, with the nomination of Mark Calabria as Director in process. FHFA is the regulator of Fannie Mae, Freddie Mac, and the Federal Home Loan Banks, the combined housing finance assets of which are over $6 trillion, all involving an effective guarantee from the U.S. Treasury. What are the key issues and projects for the FHFA going forward? What can and what should it do to lead reform of Fannie and Freddie — and reform of American housing finance in general? What requires Congress and what might the FHFA, or the FHFA and Treasury, do on their own? Should the Senior Preferred Stock Agreements for Fannie and Freddie be revised? What about the role of the FHLBs? In spite of all the reform ideas, might the housing finance status quo persist?
Ed DeMarco, who was Acting Director of the FHFA 2009-2014 and now heads the Housing Policy Council, will be interviewed by R Street Institute distinguished senior fellow Alex Pollock.
Featuring:
- Ed DeMarco, President, Housing Policy Council
- [Moderator] Alex J. Pollock, Distinguished Senior Fellow, R Street Institute
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On June 28, 2018, the California legislature enacted the California Consumer Privacy Act of 2018 (“CCPA”). This legislation follows more than two decades of debate about potential federal privacy regulation, a tumultuous year of high-profile privacy incidents, and the implementation of the GDPR in Europe. It also is the most comprehensive privacy regulation that has been adopted in the United States. The CCPA was enacted in a record-breaking 7 days, has staggering breadth, and will have national and international repercussions. On this live podcast, we will discuss the substance of the CCPA (including recent amendments) and the process that led to its enactment, along with how it is likely to affect future privacy regulation in the United States, with Eric Goldman and Lindsey Tonsager, two experts in privacy law who have followed the CCPA closely.
Featuring:
- Prof. Eric Goldman, Professor of Law and Co-Director of the High Tech Law Institute, Santa Clara University School of Law
- Lindsey L. Tonsager, Partner, Covington & Burling
- [Moderator] Justin (Gus) Hurwitz, Assistant Professor of Law and Co-Director of Space, Cyber, and Telecom Law Program, University of Nebraska College of Law
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Despite the Federal Communication Commission’s decision in December 2017 to eliminate the common carrier regulations for Internet services — the so-called net neutrality rules the FCC created in 2015 — the net neutrality debate rages on. The Trump FCC preempted states’ authority to regulate the Internet, yet governors in six states have attempted to enforce net neutrality principles via executive order and three states have passed “baby net neutrality bills.” Several more state bills are pending. Can state agencies regulate Internet services? What are the legal and practical impediments? What are the consequences of businesses operating under inconsistent regulations amongst the states and at the federal level? Gus Hurwitz, Brent Skorup, and Geoffrey Manne will discuss this new front in regulation, federalism, and grassroots activism.
Featuring:
- Justin (Gus) Hurwitz, Assistant Professor of Law and Co-Director of Space, Cyber, and Telecom Law Program, University of Nebraska College of Law
- Brent Skorup, Senior Research Fellow, Technology Policy Program, Mercatus Center at George Mason University
- [Moderator] Geoffrey A. Manne, Executive Director, International Center for Law & Economics
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EPA Administrator Scott Pruitt and Secretary of Transportation Elaine Chao are proposing to roll back the Obama Administration’s fuel economy and greenhouse gas standards for model years 2022 to 2025. The proposed rollback will have vast political and economic consequences for automakers, auto dealers, and drivers. Is the rollback legally justified and appropriate? Is it good for consumers? Will the proposed rollback prompt California to enforce its own more stringent standards? If so, what are the legal and policy ramifications of overlapping federal and state standards? This live podcast will discuss these and other questions related to the Trump Administration’s proposed rollback of the fuel economy and greenhouse gas standards.
Featuring:
- Sean H. Donahue, Partner, Donahue, Goldberg & Weaver, LLP
- Jacqueline Glassman, Partner, King & Spalding, LLP
- [Moderator] James Conde, Associate, Boyden Gray & Associates, PLLC
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Facebook is not getting many "likes" these days following revelations that Cambridge Analytica accessed personal information about Facebook users without obtaining clear consent. The reaction from politicians, regulators, and the marketplace has been swift and significant. In this live podcast, experts from the Regulatory Transparency Project’s Cyber and Privacy working group will discuss what happened, the economic, legal, and political consequences, and what this could mean for companies that have built business models around the use of user data.
Featuring:
- Thomas Hazlett, H.H. Macaulay Endowed Professor of Economics, Clemson University
- Jamil Jaffer, Adjunct Professor, NSI Founder, and Director, National Security Law & Policy Program, Antonin Scalia Law School
- Megan Stifel, Nonresident Senior Fellow, Cyber Statecraft Initiative, Atlantic Council
- [Moderator] Matthew Heiman, Visiting Fellow, National Security Institute, Antonin Scalia Law School
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Adam Jackson became a highly trained U.S. soldier who provided cutting-edge security to military bases and embassies. Now as a civilian, he seeks to provide similar protection for American communities through software he has developed that can identify potentially dangerous individuals and prompt a security response before violence occurs. Schools, places of worship, concert venues — all have jumped at the opportunity to use Adam’s service. However, Adam has been barred from utilizing the technology altogether. The Tennessee Alarm Systems Contractors Board considers the software to be an alarm system which requires Adam to undergo a 5-year apprenticeship in alarm system installation before he can obtain a certification to deploy his software. Adam, with the help of the Beacon Center of Tennessee, is challenging the Board’s determination. In the meantime, he has shut down his business while he awaits an administrative resolution to his case.
Featuring:
- Braden Boucek, Director of Litigation, Beacon Center of Tennessee
- Adam Jackson, Founder, Edge AI
Visit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.
We live in a system where regulators make rules, investigate alleged violations of the rules, and then adjudicate those violations before an Administrative Law Judge who is a member of the agency. When agency decisions are appealed to the traditional court system, judges are obligated to “defer” to the agency on both its legal and factual conclusions. Many opponents of this scheme have criticized the system for “placing a thumb on the scales of justice” by encouraging judicial bias. Many of the same critics assert that the current system of administrative law offends the rule of law, due process, and separation of powers. In April 2018, Arizona passed first-of-its-kind legislation, developed by the Goldwater Institute, that eliminates this legal deference in state courts.
This teleforum call will explore this new law, discuss how it might change state agency rulemaking and enforcement, and also examine how the law might address concerns regarding judicial bias and other issues. Importantly, this program will also consider whether this legislation can serve as a model for the rest of the country, and the federal government.
Featuring:
Philip Hamburger, Maurice and Hilda Friedman Professor of Law, Columbia Law School
Jonathan Riches, Director of National Litigation, Goldwater Institute
Visit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.
EPA Administrator Scott Pruitt announced that his agency would no longer allow the use of “secret science” in developing federal regulations. Specifically, the agency will only use scientific studies to develop regulations when the data and methodology for those studies are made accessible to the public. Is there really a secret science or transparency problem that even needs to be addressed? If so, have there been attempts historically to correct the problem? What are the implications of excluding such studies? This presentation will provide background on this effort and discuss how transparency in government can be strengthened and better inform policymaking.
Featuring:
- Daren Bakst, Senior Research Fellow in Agriculture Policy, Institute for Economic Freedom, The Heritage Foundation
- Richard B. Belzer Ph.D., Independent Consultant in Regulation, Risk, Economics & Information Quality
Visit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.
In Virginia, it’s perfectly legal to have a happy hour; it’s just illegal to talk about it. The state has several advertising restrictions that opponents claim are outdated and prevent businesses from communicating entirely truthful information about their legal happy hour practices--including the price of any drink. These laws affect entrepreneurs like Chef Geoff Tracy, who owns three restaurants in the DC metro area.
In this live podcast, Chef Geoff tells his story of how these restrictions have driven up the cost of doing business, how they have forced him to alter his successful business model, and why he ultimately decided to sue Virginia over them. Chef Geoff’s attorney, Anastasia Boden of the Pacific Legal Foundation (PLF), will discuss the lawsuit, explaining why she believes economic regulations are a growing threat to businesses and share what PLF is doing to fight for economic liberty and free speech in the courts.
Featuring:
- Anastasia P. Boden, Attorney, Economic Liberty Project, Pacific Legal Foundation
- Geoffrey Tracy, Founder, Chef Geoff's
Visit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.
Self-driving vehicles may be on American roads sooner than many think. As a result, the Department of Transportation and National Highway Traffic Safety Administration have been increasingly focused on examining the potential regulatory barriers calling for comments on various federal motor vehicle safety standards (FMVSS) that need to be changed and updates to the existing policy guidance on self-driving vehicles. Accommodating the deployment of self-driving vehicles will necessitate addressing outdated FMVSS, current definitions of "driver" or "operator," cybersecurity and privacy concerns, and a regulatory landscape where various authorities are divided between states and the federal government.
Featuring:
- Ryan Hagemann, Director of Technology Policy, Niskanen Center
- Jamie Boone, Senior Director, Government Affairs, Consumer Technology Association
Visit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.
Invoking the Tobacco Control Act, the FDA issued an omnibus regulation of cigars, pipe tobacco, and vaping products in 2016. That Rule required all of these products to go through an FDA review process similar to that for prescription drugs and medical devices and to bear large warnings covering 30 percent of two panels of each package and 20 percent of all advertisements—even though some vaping products contain no tobacco or nicotine. The Rule also prohibits truthful statements about the products, including whether they contain tobacco or not, without costly FDA pre-approval, and the speakers bear the burden to prove the net value of their speech to consumers as a whole, whatever that means. Although the Trump Administration delayed some aspects of the Rule, current and delayed mandates threaten the vitality of major industry sectors, including the large health warnings and prior approval of truthful speech.
In addition to the usual regulatory questions, our speakers raise fundamental constitutional challenges to the Rule. Mr. Gaziano and Pacific Legal Foundation are representing nine vaping retailers and harm reduction advocates who filed three lawsuits arguing that the Rule is invalid because it was issued by an FDA employee who is not constitutionally authorized to issue regulations pursuant to the Appointments Clause. Those suits raise key questions of democratic accountability and Executive Power: Who has the authority to impose a massive web of regulations on an entire industry? Mr. Edney represents several cigar and pipe tobacco trade associations and other individual cigar manufacturers and retailers challenging the Rule. Even with the postponement of some compliance deadlines, the Appointments Clause and First Amendment challenges in both sets of cases are ripe. If the FDA’s arguments prevail, the government could require large warnings blanketing any package or advertisements for virtually any product and ban truthful statements about those products without bureaucratic pre-approval.
Featuring:
- Todd F. Gaziano, Director, Center for the Separation of Powers, Pacific Legal Foundation
- Michael J. Edney, Chairman and Partner, Norton Rose Fulbright's White Collar Criminal Defense Practice Group
Visit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.
Did you know that you have a say in the U.S. government’s regulatory process?
The Administrative Procedure Act (APA) requires that most regulations promulgated by administrative agencies go through a process called “notice and comment rulemaking.” Stripped to its basics, that means that the agency must give notice of a proposed rulemaking and then give the public a chance to comment. The law allows ordinary citizens, as much as sophisticated interest groups, opportunities to participate in, and have opinions heard on, the development of regulations. In a recent article (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3006157), Professor Donald Kochan calls this the underappreciated “commenting power.” The duty for agencies to consider and respond to significant comments is what makes commenting so powerful. In addition to Professor Kochan's article, Argive — a Silicon Valley non-profit that seeks to make regulatory processes more accountable and accessible to all — recently issued a report (https://static1.squarespace.com/static/586bee97c534a5731df8f6c4/t/5942c4c0be6594acc08fa2a5/1497547972474/Argive+Improving+Regulations.gov-2.pdf) on what they perceived as deficiencies in and suggested solutions for the actual commenting system.
In this live podcast, Professor Kochan will explain the commenting process, the scope of agencies duties to respond to comments, and why it is important to comment whether you support or oppose a rule. The podcast will also discuss some recent and older examples of cases where agency’s failure to take comments seriously has invalidated or jeopardized rulemaking efforts. Maleka Momand, co-author of the Argive report and former President of Argive, will cover the points raised and solutions suggested in the report. Both speakers may also comment on a new Administrative Conference of the U.S. project studying public engagement in rulemaking (https://www.acus.gov/research-projects/public-engagement-rulemaking).
Featuring:
- Donald J. Kochan, Parker S. Kennedy Professor in Law and Associate Dean for Research & Faculty Development, Chapman University Dale E. Fowler School of Law
- Maleka Momand, Co-Founder and CEO, Esper, Former-President, Argive
Visit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.
In 2017, the U.S. experienced a dramatic shift in regulatory policy at the federal level. This shift is attributable to a new presidential administration that has made regulatory reform a priority. This priority is evidenced by numerous regulatory initiatives including Executive Order 13771 that directs agencies, among other things, to repeal two regulations for every new regulation promulgated. The Administration recently reported that it had far exceeded this goal by instead, repealing twenty-two regulations for every new regulation created. However, debate remains over how the new administration’s regulatory efforts, in its totality, should be scored thus far. We are pleased to have OIRA Administrator Neomi Rao as our Foruth Branch podcast guest to share her perspective on that question.
Featuring:
- Neomi Rao, Administrator, OIRA
Visit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.
On Wednesday, January 31, the full United States Court of Appeals for the District of Columbia Circuit voted 7-3 to uphold the Consumer Financial Protection Bureau (CFPB) against a separation-of-powers challenge to its uniquely independent structure. The court’s majority opinion and the various concurring and dissenting opinions total 250 pages, and all were written in the shadow of the Supreme Court, which could soon be called on to clarify the constitutional law of independent agencies. Ambassador C. Boyden Gray and Boyden Gray & Associates Partner Adam Gustafson will deliver an update on the case and discuss whether it is likely to reach the Supreme Court of the United States.
Featuring:
- Ambassador C. Boyden Gray, Founding Partner, Boyden Gray & Associates
- Adam Gustafson, Partner, Boyden Gray & Associates
Visit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.
Today's money transmitters are Internet businesses. The money is digital, it might even be cryptocurrency. The business can have customers in every state and nation from day one. The services are diverse and innovative from instant payments between a ridesharing driver and a passenger to custody and exchange of dollars for bitcoin. Western Union's new contemporaries aren't just Paypal and Venmo; today they are also Google, Amazon and Coinbase.
And yet, money transmitters must still go regulator to regulator, explain their business, and become licensed in 53 states and territories under statutes that were originally drafted to keep check-cashers honest. Some argue that a federal alternative to that regulatory structure needs to be developed if the US is to stay competitive in financial technologies.
Peter Van Valkenburgh will discuss these issues and Coin Center's new discussion paper that explores how this federal structure could be developed.
Featuring:
- Peter Van Valkenburgh, Research Director, Coin Center
Visit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.
For many years, concerns have been raised that the development and use of guidance documents by agencies should be better managed and more transparent and accountable. There also has been growing concern that, in some cases, guidance documents are being used in lieu of regulations to practically bind regulated parties, without observing the procedural safeguards required of regulations. Paul Noe will discuss how, ten years ago, these concerns had led the White House Office of Management and Budget to issue a government-wide “Bulletin for Agency Good Guidance Practices” during the Administration of President George W. Bush. He also will discuss past shortcomings in the implementation of the OMB Bulletin and offer suggestions on how more could be done to promote good guidance practices across the government. In addition, Stephen Cox will discuss how these concerns are being addressed by the current Department of Justice. For example, in November, the Attorney General issued a department-wide memorandum entitled, “Prohibition on Improper Guidance Documents,” and, in December, announced the rescission of twenty-five guidance documents that were unnecessary, inconsistent with existing law, or otherwise improper.
Featuring:
- Paul Noe, Vice President, Public Policy, American Forest & Paper Association
- Stephen Cox, Deputy Associate Attorney General, U.S. Department of Justice
Visit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.
Federal regulations have accumulated over many decades, so much that it would require over three years to read through them all if you started today. The buildup of regulations over time leads to duplicative, obsolete, conflicting, and even contradictory rules and the multiplicity of regulatory constraints complicates and distorts the decision-making processes of firms operating in the economy. Firms respond to both individual regulations and regulatory accumulation by altering their plans for research and development, for expansion, and for updating equipment and processes. Because of the important role innovation and productivity growth play in an economy, these distortions may have consequences for the growth of the economy in the long run.
McLaughlin will discuss his recent study (with Duke University professors Bentley Coffey and Pietro Peretto) that examines regulation’s effect on firms’ investment choices and, consequentially, on economic growth. Using a 22-industry dataset that covers 1977 through 2012, the study finds that regulation—by distorting the investment choices that lead to innovation—has created a considerable drag on the economy, amounting to an average reduction in the annual growth rate of the US gross domestic product (GDP) of 0.8 percent.
KEY FINDINGS
Economic growth in the United States has, on average, been slowed by 0.8 percent per year since 1980 owing to the cumulative effects of regulation:
- If regulation had been held constant at levels observed in 1980, the US economy would have been about 25 percent larger than it actually was as of 2012.
- This means that in 2012, the economy was $4 trillion smaller than it would have been in the absence of regulatory growth since 1980.
- This amounts to a loss of approximately $13,000 per capita, a significant amount of money for most American workers.
Featuring:
- Patrick McLaughlin, Director, Program for Economic Research on Regulation, Senior Research Fellow, Mercatus Center
Visit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.
Pursuant to a modern interpretation of a 100-year old law, every American who owns a cat, drives a car, or owns a home with windows is a potential criminal. The Migratory Bird Treaty Act is a strict liability statute that was passed in 1918 to prevent commercial hunting and poaching from driving migratory birds into extinction. Decades later, government lawyers began using this hunting and poaching law to prosecute people for accidental bird deaths resulting from otherwise lawful activity. The result was the imposition of a greater duty to protect the lives of birds, prosecutorial discretion to decide which people and industries would be held to account for “incidental takings,” and a collection of formal and informal guidance from enforcement agencies about how to comply to avoid jail time and heavy fines. On this call, hear how we got here, what the Department of the Interior is doing in this regulatory space, and what effect the DOI’s actions will have.
Featuring:
Gary Lawkowski, Counselor to the Deputy Secretary, Department of the Interior
Visit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.
Armand Lauzon created a cutting-edge business called Project Belle. Belle is a service that connects consumers directly with health and beauty professionals for in-home or at-work care in Tennessee. A Tennessee salon owner who “found this type of competition highly disturbing” reported Lauzon’s business to the Tennessee State Board of Cosmetology. The Board determined that Belle had run afoul of a regulation that makes it illegal in Tennessee to practice cosmetology outside of a brick-and-mortar salon. The Board issued Lauzon a $500 penalty and a cease-and-desist notice. Believing his business model to be outside the scope of the regulation—Lauzon does not own a salon and does not perform cosmetology services himself—and indeed the Board’s authority, Lauzon challenged the Board’s order.
Join us for this Deep Dive podcast to hear the full story of Project Belle and the Tennessee State Board of Cosmetology.
Featuring:
- Armand Lauzon, Founder & CEO, Belle
- Braden H. Boucek, Director of Litigation, Beacon Center of Tennessee
Visit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.
Federal regulation strictly limits how pharmaceutical companies share information about the legal use of their products. Companies that promote or advertise the use of medicines or medical devices in ways that the Food and Drug Administration (FDA) has not approved—so-called “off-label use”—are subject to prosecution for the crime of “misbranding.” In other words, it is legal—and very common—for a physician to prescribe a medicine or to use a device for an off-label purpose but, it is illegal for a company to talk about it. This regulatory framework has been defended, in part, as necessary to prevent companies from misleading the public about drug risks and effectiveness. Others argue that this limitation amounts to impermissible speech regulation upon those with the most knowledge about drugs and their possible uses and side effects.
This podcast will cover the First Amendment implications of the FDA's regulation, legal history and major court decisions and settlements, and how state governments are handling the issue.
Featuring:
- Christina Sandefur, Executive Vice President, Goldwater Institute
Visit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.
Is the Newest Part of the Copyright Act Antiquated? Unchaining Creativity and Innovation.
Nearly twenty years ago, Congress passed the Digital Millennium Copyright Act (DMCA) to combat online infringement. According to some critics, this most recent major update to the Copyright Act is one of the most outdated parts of the law. The discontent stems from the DMCA's "notice and takedown system," which obligates online services to take down pirated works posted by users, but only after the owner identifies the specific file at a specific location on its server. If another copy – or many other copies – of that same file pop up on the same service, each requires a new and separate notice. The authors of the DMCA likely never envisioned the speed and scale of online infringement. Last year, copyright owners sent Google well over 900 million takedown requests. Small creative businesses and individual creators find it impossible to keep up. Neither creators nor online services are satisfied with this state of affairs, although each disagrees strongly as to what to do about it. Is the DMCA an imperfect, but workable solution to a challenging problem? Or has it become outdated and impractical? What are the merits and costs of potential reforms?
This live podcast is held in conjunction with the release of a paper authored by members of the Regulatory Transparency Project's Intellectual Property working group. The paper is called "Creativity and Innovation Unchained: Why Copyright Law Must be Updated for the Digital Age by Simplifying It." This paper, which discusses the DMCA notice and takedown issue, is available for viewing and download at https://regproject.org/paper/creativity-innovation-unchained-copyright-law-must-updated-digital-age-simplifying/.
Featuring:
- Jennifer L. Pariser, Vice President of Copyright and Legal Affairs, Motion Picture Association
- Maria Schneider, GRAMMY Award Winning Artist
- Mark. F. Schultz, Associate Professor of Law, Southern Illinois University School of Law
Visit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.
For about a decade, some legal scholars have urged the Federal Communications Commission (FCC) to regulate the Internet to ensure "net neutrality," a content nondiscrimination standard for Internet service providers like Comcast and Verizon. This concept has gained popular support, particularly among young adults and those in the tech industry. In 2015, at the behest of President Barack Obama, the FCC created net neutrality regulations and cited Title II of the Communications Act of 1934 as its authority. However, there are other legal scholars who have pushed back. Some FCC commissioners even view the rules and the asserted legal authority as illegitimate and as a threat to free speech online, the development of new technology services, and telecom industry investment. In December 2017 the Republican commissioners, who now form a majority, appear ready to totally repeal the 2015 net neutrality regulations. Brent Skorup will discuss the history of the net neutrality movement, the 2015 rules, the First Amendment issues at stake, and the effect of repealing the rules.
Featuring:
- Brent Skorup, Research Fellow in the Technology Policy Program, Mercatus Center at George Mason University
Visit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.
Should software be regulated like a military weapon? That's the direction in which most Western nations seem to be moving, under the guidance of the international Wassenaar Arrangement governing international export controls. During its 2013 plenary session, the Wassenaar member nations agreed to implement export controls for (1) software, hardware, and technology that generate, operate, deliver or communicate with "intrusion software"; and (2) "carrier class" IP network communications surveillance items. The purpose of these controls was to protect activists and opposition figures from monitoring by authoritarian governments and to keep software and technology out of the hands of malicious hackers.
But the agreed-to controls control not only malicious "intrusion" software items, but virtually any type of software, hardware, and technology designed to counter "intrusion" software. The controls have also been ineffective in actually reaching their intended targets—barring specific companies from exporting specific tools to specific end-users for specific purposes—and international implementation has been widely divergent.
Featuring:
- Alan Cohn, Counsel, Steptoe & Johnson LLP
- Stewart Baker, Partner, Steptoe & Johnson LLP
- [Moderator] Matthew Heiman, Vice President, Corporate Secretary & Associate General Counsel, Johnson Controls
Visit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.
On Friday, October 6, Treasury issued the second of its reports to the President on Core Principles for Financial Supervision. When it comes to financial regulation, the Treasury Department has little formal authority. Yet, when Treasury wants to, it can set the tone and drive the priorities. Did the Treasury do that with its most recent report and its June report? What difference might this all make with regard to financial reform? And what might we expect from the Federal Reserve, the FDIC, the OCC, and other financial regulators in response to these reports?
Featuring:
- J.W. Verret, Assistant Professor of Law, Antonin Scalia Law School
- Wayne Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association
Visit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.
On this episode of the Fourth Branch podcast, Gregory McNeal, Pepperdine Law Professor and Chairman of the RTP’s IT and Emerging Technology working group, partners with Mercatus Senior Research Fellow Adam Thierer to discuss the law and policy frameworks impacting emerging technologies. Their talk explores the idea of permissionless innovation, collaborative acceleration, and why a cross-cutting working group focused on emerging technology is necessary for the Regulatory Transparency Project.
Featuring:
- Gregory McNeal, Professor of Law, Pepperdine University School of Law
- Adam Thierer, Senior Research Fellow, Mercatus Center
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
On August 16, the Department of Justice issued a letter repudiating the Department’s participation in an initiative known as “Operation Choke Point” during the Obama administration. Operation Choke Point sought to deprive members of disfavored industries, such as payday lenders and firearms dealers, of the right to access the banking system. This live podcast will discuss Operation Choke Point, the Department of Justice Letter, and litigation against federal agencies who have participated in Operation Choke Point.
Featuring:
- Pete Patterson, Partner, Cooper & Kirk, PLLC
Visit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.
In 2011, Congress created a new administrative tribunal in the U.S. Patent Office with the power to cancel previously granted patents, called the Patent Trial and Appeal Board (PTAB). The PTAB was created to provide an efficient and inexpensive administrative process for eliminating low-quality patents – what are called “bad patents.” Despite its laudable purpose, the PTAB has earned a reputation among some as a prime example of regulatory overreach. The PTAB’s critics cite a wide range of concerns including inadequate due process protections and bias against patents. A former federal appellate chief judge even referred to PTAB administrative judges as “patent death squads.” So, is the PTAB indeed harming the property rights that have helped to drive the U.S. innovation economy for over 200 years or, is it functioning as intended? What are the concerns of its detractors? If these concerns are valid, does the PTAB need simple reform or more?
This live podcast is held in conjunction with the Monday, August 14 release of a paper authored by members of the Regulatory Transparency Project’s Intellectual Property Working Group. The paper is called “Crippling the Innovation Economy: Regulatory Overreach at the Patent Office.” This paper, which discusses this new administrative tribunal at the Patent Office, is available for viewing and download at https://regproject.org/paper/crippling-innovation-economy-regulatory-overreach-patent-office/.
Featuring:
- Josh Malone, Inventor, Bunch O Balloons
- Kristen Osenga, Professor, University of Richmond School of Law
- Brian O’Shaughnessy, Partner, Dinsmore & Shohl LLP
Visit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.
Administrative agencies, and extensive regulation of the economy, have always existed in America. But from the founding to 1900, agencies were constrained by basic principles of representation, separation of powers, and judicial review. In his new book, Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government, Professor Joseph Postell explores American history, from the Revolutionary War to the present, to answer such questions as: What is the administrative state; Is it compatible with the basic principles of American constitutionalism; How have American thinkers and statesmen answered these questions in the past; What has changed since then; and, Do these changes pose a threat to our constitutional system?
Featuring:
- Joseph Postell, Associate Professor of Political Science at the University of Colorado-Colorado Springs
Visit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.
Howard Root started Vascular Solutions, a medical device company, from scratch. Fifteen years later, his Minnesota company had created over 500 American jobs and developed more than 50 new medical devices that saved and improved lives.
But in 2011, the federal government accused Howard of marketing medical devices for unapproved uses – a practice prohibited by the FDA. Howard professed his innocence from the beginning but, when prosecutors set their sights on Howard and his company, there was no guarantee that he would save his company from closing or himself from prison.
5 years, 121 attorneys, and $25 million in legal fees later, his life’s work and freedom rested in the hands of 12 strangers in a San Antonio jury room. Would Howard and his company be vindicated by the verdict, or had he made the biggest mistake of his life by challenging the federal government?
Featuring:
- Howard Root, Former CEO of Vascular Solutions, Inc.
Visit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.
The Internet of Things (IoT) refers to the connection of various devices to the Internet. The Internet of Things (IoT) is growing in prominence almost exponentially. Today, manufacturers are creating products with cyber capabilities that range from life-critical systems such as cars or medical devices, to more prosaic, even whimsical products like internet-connected toasters. The expansion of connectivity brings with it risks to security and privacy.
How should those risks be addressed? Is this a case where the market will provide a solution? Or is this one of those instances where regulation is required? Are manufacturers liable for insecure products? If not, who pays when something goes wrong?
Featuring:
- Paul Rosenzweig, Principal, Red Branch Law & Consulting, PLLC
- Suhail A. Khan, Director of External Affairs, Microsoft
Visit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.
Congress passes and the President signs several dozen laws every year. Meanwhile, federal departments and agencies issue well over 3,000 regulations of varying significance. Does Congress have a clear grasp of the amount and cost of the thousands of executive branch and federal agency proclamations and issuances, including guidance documents, memoranda, bulletins, circulars, and letters, that carry practical (if not always technically legally) binding regulatory effect? There are hundreds of “significant” agency guidance documents now in effect, plus many thousands of other such documents that are subject to little democratic accountability. Is the government trading the cost and benefits of informal as well as formal rules?
Featuring:
- Wayne Crews, VP for Policy & Director of Technology Studies, Competitive Enterprise Institute
Visit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.
Mike Daugherty is the CEO of LabMD, a medical testing lab. He has spent most of the last decade defending his company against charges that it had deficient cybersecurity practices. The early years of this battle are recorded in his book, "The Devil Inside the Beltway". In so doing, he has become the only litigant to challenge the basic authority that underlies more than 200 enforcement actions relating to cybersecurity and online privacy that the FTC has brought over the past 15 years. Every one of the 200+ litigants before him – including some of the largest companies in the world – have settled with the FTC, creating an unquestioned and untested belief that the FTC has broad authority to regulate in these areas.
Following oral arguments last month before a panel of the 11th Circuit Court of Appeals, it seems entirely possible that he will prevail. In so doing, he may well topple key pillars of the FTC’s cybersecurity and online privacy edifice.
Featuring:
- Michael J. Daugherty, Founder, President and CEO, LabMD
- Gus Hurwitz, Assistant Professor of Law, Nebraska College of Law
Visit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.
Flytenow was a ridesharing platform for small planes. The company was founded by two pilots, Alan Guichard and Matt Voska. This kind of cost-sharing arrangement was explicitly authorized by the Federal Aviation Administration (FAA). The Flytenow software facilitated the cost-sharing in accordance with FAA rules and also provided a breadth of information about the flight and the pilot including his/her license type, experience, past flight ratings, and social media.
The service was a great win-win for both parties. That is until the FAA caught wind of all the innovation and deemed the online nature of Flytenow to be prohibited. The FAA reasoned that posting flight plans online, as opposed to physical bulletin boards, was impermissible because it could attract a broader segment of the public. Flytenow, with the help of The Goldwater Institute, challenged the FAA’s ruling all the way to the Supreme Court; but unfortunately, the Court declined to take up the case in January of this year, effectively upholding the lower courts' siding with the FAA.
Flytenow is now pursuing a legislative route to make ridesharing in aviation a reality.
Featuring:
- Jonathan Riches, Director of National Litigation, Goldwater Institute
- Alan Guichard, CFO and Co-Founder, Flytenow, Inc.
Visit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.
In many federal investigations, a regulatory agency must bring legal action against a company or individual through the traditional court system. However, some regulatory agencies, like the Securities and Exchange Commission (SEC), have a powerful alternative – administrative proceedings. Rather than filing a lawsuit in federal court, the SEC can institute an administrative proceeding, which is presided over by an Administrative Law Judge. In doing so, the SEC can put nearly any company or individual at a distinct litigation disadvantage, depriving them of significant rights and thereby increasing its own chances of success.
Take for instance, the case of Eric Wanger. In 2010, Mr. Wanger ran a multi-family office, employed 11 people, published articles on finance, and campaigned for shareholder rights. The SEC claimed that Mr. Wanger overcharged his clients by exactly $2,269, about $70 per month – possibly the smallest case the SEC has ever undertaken. No charges were ever filed against Mr. Wanger, and no hearings or trial were held. He never pleaded guilty or admitted to breaking any laws. The SEC instead, instituted administrative proceedings which forced Mr. Wanger to shut down his business and layoff his employees, and has since barred him from practicing his profession.
You can also read more about Mr. Wanger’s story on his blog at https://2200dollarman.org.
Featuring:
- Michael Kelly, Partner, Hogan Lovells U.S. LLP
- Eric Wanger, Founder, Wanger Investment Management
Visit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.
We have grown accustomed to modern government issuing and enforcing new rules to protect certain public goods, but regulations also have the potential to stifle innovation and harm the most vulnerable among us. Therefore, we must be diligent in reviewing how regulations either succeed or fail us, and think about how we might improve them.
The Regulatory Transparency Project promotes a national conversation about the benefits and costs of federal, state, and local regulatory policies and explores areas for possible improvement.
Featuring:
- Amb. C. Boyden Gray, Founding Partner, Boyden Gray & Associates
- Devon Westhill, Founding Director, Regulatory Transparency Project
Visit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.
Devon Westhill introduces and describes the Regulatory Transparency Project's podcast series.
Listen to future episodes of the Fourth Branch Podcast (https://regproject.org/podcast/) to hear leading experts discuss the merits of government rules that affect your daily lives.
Featuring:
- Devon Westhill, Founding Director, Regulatory Transparency Project
Visit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.
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