RTP's Fourth Branch Podcast

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

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

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

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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

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