RTP's Fourth Branch Podcast

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 President Biden rescinded that order upon taking office, and agencies are in the process of unwinding actions taken to implement the order.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

Visit our website – www.RegProject.org – 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 Institute

Visit our website – www.RegProject.org – 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 Foundation

Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

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

Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

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

Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

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

Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

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

Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

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

Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

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

Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

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

Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.