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RTP's Fourth Branch Podcast
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RTP's Fourth Branch Podcast

Author: The Federalist Society

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The 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.
239 Episodes
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, AirMapVisit our website – – 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 LLPVisit our website – – to learn more, view all of our content, and connect with us on social media.
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 CommentatorVisit our website – – 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 InstituteVisit our website – – 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 FoundationVisit our website – – to learn more, view all of our content, and connect with us on social media.
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 SchoolVisit our website – – to learn more, view all of our content, and connect with us on social media.
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 LLPVisit our website – – to learn more, view all of our content, and connect with us on social media.
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 LawVisit our website – – to learn more, view all of our content, and connect with us on social media.
"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 LawVisit our website – – to learn more, view all of our content, and connect with us on social media.
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 LawVisit our website – – to learn more, view all of our content, and connect with us on social media.
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 UniversityVisit our website – – to learn more, view all of our content, and connect with us on social media.
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 UniversityVisit our website – – to learn more, view all of our content, and connect with us on social media.
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 FoundationVisit our website – – to learn more, view all of our content, and connect with us on social media.
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 OpportunityVisit our website – – to learn more, view all of our content, and connect with us on social media.
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 InstituteVisit our website – – to learn more, view all of our content, and connect with us on social media.
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 JusticeVisit our website – – to learn more, view all of our content, and connect with us on social media.
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 LawVisit our website – – to learn more, view all of our content, and connect with us on social media.
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 RepresentativesVisit our website – – to learn more, view all of our content, and connect with us on social media.
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 InstituteVisit our website – – to learn more, view all of our content, and connect with us on social media.
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 FoundationVisit our website – – to learn more, view all of our content, and connect with us on social media.
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