In the conclusion of UnCommon Law's season-long exploration of noncompete agreements, we look at the Federal Trade Commission's authority to ban the clauses nationwide.

We’ve reviewed how the ban would work and explored the policy arguments for and against it. Now we delve into a more fundamental question: Does the FTC even have the power to make a substantive rule like this one?

It's been 50 years since the DC Circuit Court of Appeals ruled that the FTC has substantive rulemaking power. We’ll learn about that case — National Petroleum Refiners Association v. FTC — we’ll find out why it’s so important to the FTC, and we’ll hear why many believe it would not turn out the same way today.

But that's not all! Even if courts follow National Petroleum, could the FTC get past the major questions doctrine?

The season finale of UnCommon Law features:

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Host/Producer: Matthew S. Schwartz

Editor/Executive Producer: Josh Block

Cover Art: Jonathan Hurtarte

The Supreme Court has effectively ended the use of race as a factor in college admissions.

In a 6-3 ruling, along ideological lines, the divided Supreme Court struck down the admissions programs of Harvard and the University of North Carolina, which both used race as a factor in their admissions process.

Today, on this special edition of UnCommon Law, we’ll learn how the court came to its decision. And: Did the majority leave the door open for colleges to still consider race in some circumstances? We’ll learn why some supporters of affirmative action still have a glimmer of hope.

Featuring:

In its proposal to ban noncompete agreements nationwide, the Federal Trade Commission has touted the potential benefits to workers and the economy. But how would a ban impact business owners?

This week on UnCommon Law, part four of our series on the agency's proposal. Why are so many business owners so adamant that they need to be able to use noncompetes, even when other legal tools — like trade secret laws and nonsolicitation agreements — might protect companies without limiting employee mobility?

Featuring:

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Host/Producer: Matthew S. Schwartz

Editor/Executive Producer: Josh Block

Cover Art: Jonathan Hurtarte

California is one of just three states where noncompete agreements are almost completely banned. California is also the home of Silicon Valley, the global hub of technological innovation. Is that just a coincidence? Or would Silicon Valley be as successful even if noncompete agreements were allowed?

This week on UnCommon Law, part three of our ongoing series on the Federal Trade Commission's proposal to ban noncompete agreements nationwide. Is California’s ban on noncompete agreements really a key component to Silicon Valley’s success?

Guests:

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Host/Producer: Matthew S. Schwartz

Editor/Executive Producer: Josh Block

Cover Art: Jonathan Hurtarte

This week on Uncommon Law: the second episode in our podcast series about the Federal Trade Commission’s proposed nationwide ban on noncompete agreements. We’ll look at one Minnesota hair salon and see how noncompete agreements often play out in the real world. What happens when employees leave the hair salon and try to strike out on their own?

Guests:

The case discussed in this episode is Simonson's Salon and Spa vs. Heidi Hautala, Docket No. 27-CV-15-5647 (Minn. Dist. Ct. Apr 03, 2015)

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Host/Producer: Matthew S. Schwartz

Editor/Executive Producer: Josh Block

Cover Art: Jonathan Hurtarte

This season on UnCommon Law, we’re exploring one of the most expansive Federal Trade Commission proposals of the last half century: a near-total nationwide ban on noncompete clauses. We’ll examine arguments for the ban, and talk to workers who’ve had their livelihoods crushed by oppressive covenants not to compete. We’ll look at arguments in favor of keeping noncompetes, and talk with business owners who say they’re crucial for keeping trade secrets confidential and protecting business relationships. Finally, we’ll explore a more fundamental question: Does the FTC even have the legal authority to do this?

Our first episode explores how this unprecedented proposal came to be. To understand just how out-of-the-ordinary this proposal is, we'll journey into the history of the agency, whose past rulemakings got them labeled the "national nanny" by the Washington Post, and led to threats of defunding.

Guests:

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Host/Producer: Matthew S. Schwartz

Editor/Executive Producer: Josh Block

Cover Art: Jonathan Hurtarte

This season on UnCommon Law, we’re exploring one of the most expansive Federal Trade Commission proposals in modern history: a nationwide ban on noncompete clauses. Coming May 31st.

It’s been almost 20 years since Justice Sandra Day O’Connor, intentionally or not, set an affirmative action countdown in motion. On Oct. 31, the Supreme Court heard arguments that Harvard and the University of North Carolina go too far in their use of race in admissions. Will the diversity rationale — the heart of affirmative action defenses since 1978 — convince this staunchly conservative court?

Also, while diversity has been the reason affirmative action has survived legal tests — was it ever the best reason, under the Constitution, for affirmative action? Or have advocates been hamstrung by an argument that doesn't go far enough?

Are race-conscious admissions policies about to fall? The conclusion to our four-part series on affirmative action at the Supreme Court.

Guests:

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Host/Producer: Matthew S. Schwartz

Editor/Executive Producer: Josh Block

Cover Art: Jonathan Hurtarte

For decades, over multiple decisions, the Supreme Court has been clear: The U.S. Constitution allows colleges to take race into account when they craft their incoming classes. And yet race-conscious admissions policies continue to face attacks.

Today, on part three of our four-part series on affirmative action, we’ll meet the man who has perhaps done more than any other in recent memory fighting to end the use of race in America’s public policies. Will Edward Blum be successful in convincing today’s solidly conservative high court to end affirmative action in education?

Guests:

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Host/Producer: Matthew S. Schwartz

Editor/Executive Producer: Josh Block

Cover Art: Jonathan Hurtarte

In 1978, the Supreme Court allowed colleges to take race into account when crafting their incoming classes. Throughout the '80s and '90s, that’s what many schools did: To get a diverse incoming class, universities used race as one factor among many.

But some schools get a lot of applicants — tens of thousands of students applying for just a few thousand spots. How do you complete an individualized review of so many people? How do you make sure you consider race consistently across those tens of thousands? Is there a way to streamline the process while still complying with what Justice Lewis F. Powell, Jr. said the Equal Protection Clause requires?

This is the second episode of UnCommon Law's three-part series about the Supreme Court's biggest affirmative action in education cases. In the first episode we looked at the 1978 case of Allan Bakke, an applicant to medical school who was denied admission. In this episode, we explore the 2003 cases of Gratz v. Bollinger and Grutter v. Bollinger.

Guests include:

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Host/Producer: Matthew S. Schwartz

Editor/Executive Producer: Josh Block

Cover Art: Jonathan Hurtarte