RTP's Fourth Branch Podcast

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...

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: - Do...

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...

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 mon...

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 e...

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 Stat...

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...

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 t...

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 hap...

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 jump...

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 sch...

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 s...

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...

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...

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 p...

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 allow...

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. T...

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 Co...

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; t...

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 w...

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. Fi...

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 poachin...

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...

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...

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," whi...