The next presidential inauguration will be on January 20, 2021. The six months between then and today will involve a flurry of regulatory activity, just as the final months of presidential terms always do. Whether the next inauguration features Donald Trump or Joe Biden, agencies will try to complete as many regulatory proceedings as possible before the inauguration, with an eye to not just the end of the current presidential term but also the beginning of the next one.

What actions should we expect agencies to take? To what extent can the current administration issue "midnight rules" affecting policy beyond January 20? And to what extent could the Congressional Review Act permanently erase those rules?

Featuring:

- Prof. Jack Beermann, Harry Elwood Warren Scholar and Professor of Law, Boston University Law School
- Mr. Daniel Pérez, Senior Policy Analyst, GW Regulatory Studies Center
- [Moderator] Prof. Adam White, Assistant Professor and Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School at George Mason University

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In 2017 the Department of Education withdrew the Obama administration's guidance documents on Title IX sexual harassment. The next year it issued a notice of proposed rulemaking under the Administrative Procedure Act. The department received more than 124,000 comments on the proposal and held meetings with many interested parties. In May, the Department released its new rules - the first such rulemaking on a major Title IX issue since 1975.

The new rules require colleges to use more robust procedures when adjudicating student-on-student allegations of sexual assault, including by using a live hearing where representatives of each side can cross-examine adverse witnesses. The rules also narrow the definition of sexual harassment cases that schools must address under Title IX, and limit university liability for off-campus events.

Lawsuits from blue-state Attorneys General and activist groups hope to block all or part of the rules. Three of these lawsuits have sought preliminary injunctions, on grounds that the rules will make it harder to eradicate sexual harassment on campus. These legal challenges also have minimized concerns that colleges currently deny accused students a meaningful chance to defend themselves.

Civil liberties advocates have long advocated a fairer approach to Title IX adjudications, but they recently gained important support in the form of briefs backing the new regulations filed by 15 states, including Texas and Florida. These red and purple states argued that Obama-era policies "trampled the rights of students and created a false choice: either combat sexual harassment or protect constitutional liberties. We propose a different option: do both."

This live podcast discusses and analyzes what this new rulemaking means for students, schools, potential legal challenges, and future administrations.

Featuring:

- [Moderator] Linda Chavez, Chairman, Center for Equal Opportunity
- KC Johnson, Professor of History, Brooklyn College and SUNY Graduate Center
- Stuart S. Taylor Jr., Freelance Journalist and Author

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COVID-19 has created many challenges for employers, including making it more difficult for them to comply with labor and employment laws. Recently-enacted statutes like the First Families Act and the CARES Act, as well as existing laws like the National Labor Relations Act and Title VII of the Civil Rights Act, have presented significant compliance challenges for employers.

Featuring Tammy McCutchen and G. Roger King, this live podcast reviews federal and state labor and employment issues and options for employers to consider.

Featuring:
- G. Roger King, Senior Labor and Employment Counsel, HR Policy Association
- Tammy McCutchen, Principal, Littler Mendelson PC

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American tech companies like Google, Apple, Facebook, and Amazon are some of the most successful companies in the world. Recently, these companies have faced various criticisms, with some questioning if they are violating the antitrust laws. Antitrust investigations are ongoing by the DoJ, FTC, and the attorneys general of many states. On Wednesday, July 29, a Congressional hearing was held with the companies' CEOs on the question of online platforms and market power.

This live podcast explores what these investigations tell us about innovation and antitrust, as well as the current concerns regarding these firms' market power and conduct. Can current antitrust law and competition policy address this dynamic market? How might antitrust enforcement impact innovation? What do these investigations and calls to break up big tech companies tell us about the future of antitrust enforcement and competition policy?

Featuring:
- Thomas Hazlett, H.H. Macaulay Endowed Professor of Economics, Clemson College of Business
- Jennifer Huddleston, Director of Technology & Innovation Policy, American Action Forum
- Hal Singer, Managing Director, Econ One

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A sustained effort by activist investors to align corporate policy and investing with a progressive policy agenda could be shortchanging the retirement savings of millions of Americans. Data show that investments tied to perceived environmental, social, and governance principles, or ESG, generally offer lower yields than the S&P 500 benchmark, but activists are pushing to use trillions of dollars in pension and retirement plans to discriminate against various industries. The trend could have profound implications for public and private pensions programs and other retirement savings plans. ESG investing might also pose a challenge to the fiduciary responsibility of asset management professionals to act in the best financial interests of the people they serve, a bedrock concept in financial planning.

The U.S. Department of Labor is preparing to ensure ESG investing does not undermine protections enshrined in the Employee Retirement Income Security Act (ERISA). A proposed rule would codify in law that asset managers must uphold their fiduciary responsibility when considering ESG investment decisions. The rule states: "It is unlawful for a fiduciary to sacrifice return or accept additional risk to promote a public policy, political, or any other nonpecuniary goal." A comment period ends on July 30.

In this live podcast, J.W. Verret discusses the Labor Department's proposed rules and their implications for retirement security.

Featuring:
- Prof. J.W. Verret, Associate Professor of Law, Antonin Scalia Law School, George Mason University

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Prof. Richard Epstein's The Dubious Morality of Modern Administrative Law examines how the growth of the administrative state as a result of FDR's New Deal has coincided with many different Supreme Court decisions since the 1936-37 term of the Court that legitimized the reach of different administrative agencies by giving them far more control over substantive issues through different forms of judicial deference to agency interpretation, such as Auer and Chevron deference.

In this live podcast, Prof. Adam J. White interviews Prof. Epstein about his new book, and then Prof. Epstein fields caller questions on administrative law.

Featuring:
- [Moderator] Prof. Adam J. White, Assistant Professor and Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School at George Mason University
- Prof. Richard Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law

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This expert panel examined recent calls for the Federal Trade Commission (FTC) to engage in substantive rulemaking under the competition and consumer-protection prongs of Section 5 of the FTC Act. How far does FTC statutory authority under 6(g) extend? Is rulemaking appropriate as a matter of policy? How has FTC rulemaking fared in the past and what guideposts should apply?

Opening Remarks:
- Noah Phillips, Commissioner, Federal Trade Commission

Panel Featuring:
- James Cooper, Associate Professor of Law and Director, Program on Economics & Privacy, Antonin Scalia Law School, George Mason University
- William MacLeod, Partner, Kelly, Drye & Warren LLP
- Joshua Wright, Executive Director, Global Antitrust Institute, Antonin Scalia Law School, George Mason University
- [Moderator] Svetlana Gans, Vice President & Associate General Counsel, NCTA
- [Introduction] Nathan Kaczmarek, Director, Article I Initiative | Director, Regulatory Transparency Project

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As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

How does the Federal Trade Commission (FTC) calculate consumer injury and civil penalties in consumer protection matters? This teleforum will discuss the FTC’s remedial powers, process, and suggestions for reform, including how the Supreme Court’s recent ruling in Liu v. SEC and other cases may impact the FTC going forward.
Featuring:

James Cooper, Associate Professor of Law and Director, Program on Economics & Privacy, Antonin Scalia Law School, George Mason University
Andrew Stivers, Deputy Director for Consumer Protection, Bureau of Economics, Federal Trade Commission
Berin Szóka, Senior Fellow, TechFreedom
John Villafranco, Partner, Kelly, Drye & Warren LLP
[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.

In the midst of the COVID-19 pandemic, the federal government is waiving affirmative action requirements in federal construction projects. Wen Fa discusses whether state and local regulations should follow suit.

Featuring:
- Wen Fa, 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.