RTP's Fourth Branch Podcast

In a highly anticipated decision, the Supreme Court held in Axon Enterprise, Inc. v. FTC (consolidated with Cochran v. SEC) that federal district courts have jurisdiction to resolve challenges to the structure and existence of federal agencies whose decisions are subject to review in a court of appeals. The decision confirms that regulated entities in enforcement proceedings before the FTC and SEC need not await a final agency decision to raise these fundamental challenges—and it raises a number of questions as well. What types of questions are covered by Axon? Which other agencies are implicated by the decision? What does this decision mean for the future of administrative enforcement?

The European Union is considering adopting a wide-ranging regulatory regime for the licensing and litigation of standard essential patents (SEPs). Proposed for release on World IP Day (April 26, 2023), a leak revealed the EU plan to create an administrative tribunal to perform mandatory “essentiality checks” of certain SEPs, set royalty rates for those SEPs, mandate public disclosure of licenses, and provide mandatory but non-binding conciliation for disputes. Critics contend that this regulatory regime is unnecessary and will stifle the explosive rate of innovation in mobile telecommunications with added costs. Supporters argue this regime will bring more certainty in the marketplace and reduce costs in litigation over SEPs. This panel of experts will discuss the EU proposal and its implications for participation in standards development, patent law, commercial law, competition law and innovation policy in the global innovation economy.Featuring:Elisabeth Opie, Founder and Principal Solicitor, Opie International Technology LawyersAdam Mossoff, Professor of Law, Antonin Scalia Law School, George Mason UniversityJorge Contreras, Professor of Law, University of Utah College of Law[Moderator] Urška Petrovčič, Senior Fellow, Hudson InstituteVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

Artificial Intelligence (AI), once the stuff of science fiction, is now more than ever a part of everyday life, regularly affecting the lives of individuals the world over, sometimes in ways they may not even know. AI is increasingly used both in the public and private sectors for facial recognition, dataset analysis, risk and performance predictions, and much more, though how companies use it and the actual input it has can be unclear. Experts have warned that the expanded use of AI, especially in areas related to labor and employment, if uninvestigated, could pose serious issues. Some contend that the use of AI tools can help make hiring processes more efficient and perhaps remove human biases from the equations. Others note that while this may be an admirable goal, many AI tools have been shown to produce discriminatory outcomes. The opaque nature of how some of these AI tools operate further complicates matters, as how an AI came to a particular decision and the data it referenced may not be clear to the human reviewer, thus making the identification of discriminatory practices harder to identify. All of these issues, especially given the increasing use of AI tools in the hiring processes of many companies, raise several questions concerning AI’s entrance into the Labor and Employment space. What benefits and challenges does using AI in hiring present? How can AI be used to combat discrimination? What happens when AI itself is discriminatory, how can that be identified and addressed? What statutes and regulations apply to AI, and do the existing legal and regulatory frameworks concerning anti-discrimination in labor and employment suffice to address the novel nature of AI? Featuring: David Fortney, Co-Founder, Fortney & Scott LLC, & former Chief Legal Officer, U.S. Department of Labor Prof. Aram Gavoor, Associate Dean for Academic Affairs; Professorial Lecturer in Law, The George Washington University Hon. Keith Sonderling, Commissioner, Equal Employment Opportunity Commission Moderator: Hon. Phillip Miscimarra, Partner, Morgan & Lewis, & former Chairman, National Labor Relations Board Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

Artificial Intelligence (AI), once the stuff of science fiction, is now more than ever a part of everyday life, regularly affecting the lives of individuals the world over, sometimes in ways they may not even know. AI is increasingly used both in the public and private sectors for facial recognition, dataset analysis, risk and performance predictions, and much more, though how companies use it and the actual input it has can be unclear. Experts have warned that the expanded use of AI, especially in areas related to labor and employment, if uninvestigated, could pose serious issues. Some contend that the use of AI tools can help make hiring processes more efficient and perhaps remove human biases from the equations. Others note that while this may be an admirable goal, many AI tools have been shown to produce discriminatory outcomes. The opaque nature of how some of these AI tools operate further complicates matters, as how an AI came to a particular decision and the data it referenced may not be clear to the human reviewer, thus making the identification of discriminatory practices harder to identify. All of these issues, especially given the increasing use of AI tools in the hiring processes of many companies, raise several questions concerning AI’s entrance into the Labor and Employment space. What benefits and challenges does using AI in hiring present? How can AI be used to combat discrimination? What happens when AI itself is discriminatory, how can that be identified and addressed? What statutes and regulations apply to AI, and do the existing legal and regulatory frameworks concerning anti-discrimination in labor and employment suffice to address the novel nature of AI? Featuring: Hon. Keith Sonderling, Commissioner, Equal Employment Opportunity Commission Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

What happens when the Administration's "whole-of-government approach" to climate change meets federal contracting? The Department of Defense, the Government Services Administration, and NASA have jointly proposed a revision to the Federal Acquisition Regulations that would require government contractors to publicly disclose greenhouse gas emissions and climate-related financial risk and to set science-based reduction targets. The agencies cast the proposal as a way to reduce climate-related risks, increase U.S. competitiveness, and promote economic growth. But critics say that the proposed rule would exceed the agencies' authority, increase federal procurement costs, and unconstitutionally delegate policy-making authority to the private entities that would be charged with policing contractors' compliance.The panel will discuss the origins as well as the potential benefits and risks of this innovation in government contracting policy.Featuring:John Kostyack, Ceres Accelerator for Sustainable Capital Markets, CeresBrian Richman, Associate, Gibson, Dunn & CrutcherMarkus Speidel, Procurement Law Alumnus, The George Washington UniversityModerator: Adam Gustafson, Senior Counsel for Environmental and Regulatory Affairs, BoeingVisit our website - www.RegProject.org - to learn more, view all of our content, and connect with us on social media.

Social media platforms have emerged as the new “town square” and a key forum for public debate, but some have questioned whether that debate is as open and robust as it should be. On the other hand, some worry that efforts to regulate social media platforms may themselves crimp debate. At the heart of the discussion is Section 230 of the Communications Decency Act. A panel of experts discussed what Section 230 permits and doesn’t permit—a question now before a number of courts, including the U.S. Supreme Court in Gonzalez v. Google.Featuring:Ashkhen Kazaryan, Senior Fellow, Free Speech & Peace, Stand TogetherRandolph May, President, The Free State FoundationJoel Thayer, President, Digital Progress InstituteModerator: Boyd Garriott, Associate, Wiley Rein LLPVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.*******As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Recent months have seen a flurry of notable developments at the Federal Trade Commission, including oral arguments in the high-profile Axon v. FTC and SEC v. Cochran Supreme Court cases, administrative complaints challenging deals between Altria and JUUL and Illumina and GRAIL, and FTC Commissioner Christine Wilson’s announced resignation.This episode is a live recording of a panel of antitrust law experts examining these developments and debating what might come next at the FTC.Featuring:Debbie Feinstein, Partner, Arnold & Porter; Former Director, Bureau of Competition, Federal Trade CommissionHon. William Kovacic, Global Competition Professor of Law and Policy, The George Washington University Law School; Former Chairman, Federal Trade CommissionProf. Richard J. Pierce, Lyle T. Alverson Professor of Law, George Washington University Law SchoolHon. Joshua D. Wright, University Professor and Executive Director, Global Antitrust Institute, Antonin Scalia Law School, George Mason University; Former Commissioner, Federal Trade CommissionModerator: Bilal Sayyed, Senior Adjunct Fellow, TechFreedom; Former Director, Office of Policy Planning, Federal Trade CommissionVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.*******As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

In late February 2023, the FDA released its responses to the December 2022 Reagan-Udall Foundation reports on the FDA's Human Foods and Tobacco programs. In this follow-on explainer podcast, we once again host Jeff Stier to discuss what these initial responses include, what issues they address, and what one might want to watch moving forward. Featuring: Jeff Stier, Senior Fellow, Consumer Choice Center and Taxpayers Protection Alliance Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

In January 2023, the FTC announced a proposed rule that would ban noncompete agreements across most of the U.S. economy – a move President Biden lauded in his recent State of the Union address. While noncompete clauses have existed for centuries and have traditionally been regulated under state law, they have also become a focal point for the executive and legislative branches of late. The FTC's proposed rule represents a recent effort to shift enforcement, both substantively and procedurally. The proposed rule purports to rely on the Commission's "unfair methods of competition" (UMC) authority under Section 5 of the FTC Act. This is the first time in decades the FTC has sought to engage in a UMC rulemaking, and only the second time it has ever done so.Questions are already beginning to arise as to not only the substantive benefits of such a ban, but also the FTC's underlying authority to enact this rule. As a threshold matter, the FTC's ability to engage in UMC rulemaking is somewhat unclear – the statutory basis for this authority is hotly disputed and very likely to be challenged. The FTC's assertion that the rule would supersede contradictory state laws is also likely to draw challenges. Moreover, many have raised concerns that the proposed rule – which the FTC argues would immediately impact about 20% of the U.S. workforce – runs afoul of the major questions and nondelegation doctrines. Additionally, there are questions regarding how such a rule would ultimately impact employees, employers, and the workforce more broadly – in particular, whether such a ban is more likely to enhance or impair innovation. Our experts will discuss the genesis of the FTC's proposed ban on noncompete agreements, including the statutory and empirical evidence underpinning the rule, as well as what we can expect in the coming months and years as the FTC moves towards adopting and enforcing the rule.Introduction:Svetlana Gans, Partner, Gibson, Dunn & Crutcher, LLPKeynote Address:Rahul Rao, Deputy Director, Bureau of Competition, Federal Trade CommissionPanel Discussion:Corbin Barthold, Internet Policy Counsel and Director of Appellate Litigation, TechFreedomDiana Furchtgott-Roth, Director, Center for Energy, Climate, and Environment and The Herbert and Joyce Morgan Fellow in Energy and Environmental Policy, The Heritage FoundationJustin (Gus) Hurwitz, Professor of Law and the Menard Director of the Nebraska Governance and Technology Center, University of Nebraska College of LawMatthew Sipe, Assistant Professor of Law, University of BaltimoreEvan Starr, Associate Professor, Robert H. Smith School of Business, University of MarylandModerator: Elyse Dorsey, Partner, Kirkland & Ellis LLPVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.*******As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Signed into law in 1965, Medicaid has been active for almost 58 years, during which time its scope has fluctuated and many conversations have been had as to what the appropriate reach, means, and aims for the program should be. In this podcast featuring Tom Miller, he lays out a brief summary of how we got to where we are. He highlights the benefits Medicaid has brought as well as some of the downsides he perceives, and lays out a possible path forward to better healthcare that practically addresses the hurdles to healthcare reform legally, financially, and politically. Featuring: Thomas Miller, Senior Fellow, American Enterprise InstituteVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media. *******As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.