RTP's Fourth Branch Podcast

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.