RTP's Fourth Branch Podcast

The Education Department’s Office for Civil Rights (OCR) is expected to issue in the coming weeks its long-awaited new rules for colleges and other educational institutions to follow in handling allegations of campus sexual harassment and assault. A highly controversial draft of the new rules has almost completed a notice-and-comment process launched in September 2017 by Secretary of Education Betsy DeVos. She said that the Obama Administration's OCR's decrees on such matters, and the processes used by virtually all universities, were stacked against accused students, almost all of them male, and often harmed accusers as well.Spurred by judicial decisions and other evidence showing that innocent young men have been railroaded out of college with life-changing, often ruinous consequences, OCR issued its more than 30,000 words of proposed rules and comments in November 2018. The proposals would require numerous procedural safeguards, narrow the definition of sexual harassment, and limit university liability for off-campus events. Dozens of advocacy groups and universities, as well as tens of thousands of individuals, filed more than 120,000 formal comments over the next two months.The vast majority were denunciations of the proposed rules by feminist and victims' rights groups, Democratic legislators and state attorneys general, and universities. The schools have financial and other incentives, including fear of campus activists’ wrath, to oppose more than minimal procedural protections for accused students. They argue that OCR’s proposals – especially those requiring live hearings with cross-examination – would be so traumatic for accusers that most would choose not to report sexual misconduct.But civil liberties advocates, some law professors at Harvard and elsewhere – including a few prominent feminists -- and families of accused students filed strong responses. They argue that the universities’ pattern of presuming guilt and ignoring evidence of innocence is so entrenched that only federal action could bring a modicum of fairness. These commenters cite over 160 federal and state judicial decisions in recent years finding campus rules and bureaucrats alike biased against accused students.Whatever the final rules may say, they are sure to be challenged both in court and in Congress as inconsistent with Title IX, the Constitution, or both.Featuring:- KC Johnson, Professor of History, Brooklyn College and the CUNY Graduate Center- Stuart Taylor, Freelance Journalist and Author- [Moderator] Linda Chavez, Chairman, Center for Equal OpportunityVisit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.

The Trump Administration recently released its final rule defining “waters of the United States” under the Clean Water Act. This rule, called the “Navigable Waters Protection Rule” is the replacement for the repealed 2015 Clean Water Rule. For decades, the Environmental Protection Agency and the U.S. Army Corps of Engineers have struggled to define “waters of the United States” in a way that passes legal muster. Criticism has long-focused on the alleged overreach by the agencies, the vagueness of the definition, and a disrespect for the state role in addressing clean water as envisioned by Congress. However, many critics of the new EPA and Corps’ rule argue that it is too narrow and not properly based on science. Please join us as our experts discuss the history of the “waters of the United States” definition, explain the new rule and what waters would be regulated, and provide their insight and perspective on the impact of this major new rule.Featuring:- Daren Bakst, Senior Research Fellow in Agricultural Policy, The Heritage Foundation- Tony Francois, Senior Attorney, Pacific Legal Foundation- John Paul Woodley, Principal, Advantus Strategies, LLCVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

In December 2019, the Department of Justice, the U.S. Patent & Trademark Office, and the National Institute of Standards issued a joint policy statement on the legal remedies that should be available for infringement of a valid patent on standardized technologies, known in patent law as standard-essential patents (SEP). The 2019 DOJ-USPTO-NIST policy statement replaces a 2013 policy statement on SEP remedies by the DOJ and USPTO that had been construed by some government officials and courts as asserting that a patent owner seeking or receiving an injunction for infringement of its SEP could violate the antitrust laws. The 2019 policy statement reaffirms that there are no special rules for owners of SEPs in receiving injunctions for ongoing infringement of their valid patents, and that when licensing negotiations fail, the full range of legal remedies for all patent owners should be available for owners of SEPs.The 2019 policy statement is a significant development in the ongoing policy and legal disputes over the scope of patent rights on standardized technologies used throughout the world in smartphones, computers, and even coffee machines and automobiles. This teleforum will discuss what the 2019 policy statement means for innovators of groundbreaking, foundational technologies, for implementers of these technologies in products, and for consumers.Featuring:- David Jones, Executive Director, High Tech Inventors Alliance- Kristen Osenga, Professor of Law, University of Richmond School of Law- Brad Watts, Majority Chief Counsel and Staff Director, United States Senate Committee on the Judiciary, Subcommittee on Intellectual Property- [Moderator] Adam Mossoff, Professor of Law, Antonin Scalia Law School, George Mason UniversityVisit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.

Public notice and comment on rulemaking is a core requirement of the Administrative Procedure Act, and creates the administrative record on which any subsequent judicial review will be based. Yet many people (even people who take the trouble to vote) seem to think that commenting on rules is difficult or futile, and therefore don’t participate – even when they care about the outcome. This live podcast will discuss the practical mechanics of tracking the development of rules and filing timely comments; in fact, timely filing is about the only legal requirement for getting comments onto the record. It will describe the sorts of comments that tend to be effective in persuading an agency, including comments made directly by affected small entities without professional representation. It will also explain the concept of a “Public Interest Comment” which argues, not on behalf of any particular party or cause (however worthy), but in favor of a balanced resolution of the conflicting considerations that an agency must take into account.Featuring:- Susan Dudley, Director, GW Regulatory Studies Center and Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, George Washington University- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center- Brian F. Mannix, Research Professor, Regulatory Studies Center, George Washington UniversityVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

In this episode, Ashley Baker and Neil Chilson discuss the implications for data security under recently-enacted privacy laws. Although data privacy regulations may shield your data from companies that seek to use it for commercial purposes, certain legal requirements found in these regulations can leave your sensitive information vulnerable to bad actors. Strict data privacy rules such as California’s CCPA and the European Union’s GDPR may be exploited by hackers and others who wish to gain access to someone’s personal information. Baker and Chilson discuss data security considerations for privacy laws, the importance of defining and addressing consumer harms, and why lawmakers should prioritize cybersecurity over data privacy.Featuring- Ashley Baker, Director of Public Policy, The Committee for Justice- Neil Chilson, Senior Research Fellow for Technology and Innovation at the Charles Koch InstituteVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.Related links:Explainer Episode 9 – Biometric Information Privacy Act https://regproject.org/explainer-ep-9/Explainer Episode 6 – Regulating Biometric Access Technologies https://regproject.org/explainer-ep-6/

This podcast features audio from a recent event held at the University of California, Berkeley, featuring the insights of Richard Epstein and Daniel Farber. Epstein and Farber go to the philosophical roots of administrative law in order to get to the heart of present-day debates.Featuring:- Richard Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law- Daniel Farber, Sho Sato Professor of Law, Co-Director, Center for Law, Energy &, California-Berkeley LawVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

Amazon Web Services, Inc. (Amazon) has claimed in a lawsuit in the United States Court of Federal Claims that unlawful intervention by President Donald Trump deprived it of a $10 billion decade-long contract with the Department of Defense (DoD) for a cloud computing system known as the Joint Enterprise Defense Infrastructure (JEDI). Long considered the favorite, Amazon nevertheless lost the award to Microsoft Corp. in a competitive bidding process that Amazon claims was arbitrary and capricious and tainted by President Trump’s open feud with Amazon company founder Jeffrey Bezos.Dan Kelly, Alexander Major and Franklin Turner, nationally recognized commentators and practitioners in the federal bid protest arena, unpack what we know about Amazon’s case, and discuss the possible grounds, laws and regulations governing mandates for competitive contracting by federal agencies.Featuring:- Alexander Major, Partner and Co-Leader of Government Contracts & Export Controls Practice Group, McCarter & English LLP- Franklin Turner, Partner and Co-Leader of Government Contracts & Export Controls Practice Group, McCarter & English LLP- Moderator: Daniel Kelly, Partner, Government Contracts & Export Controls Practice Group, McCarter & English LLPVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

Gig-economy companies like Uber, Lyft, DoorDash, and others have disrupted sectors across the economy. They’ve done so in part by using new technology to tap a large pool of independent workers. This approach has not only proven to be a winning business model, it has also created a way back into the workforce for millions of people. Students, ex-offenders, single parents, and others excluded from traditional employment have found, in gig work, a new way to earn a living.Despite this, gig companies have drawn fire from many quarters, including academics, labor unions, and most importantly state legislators. Some state legislators have proposed new regulations that, while potentially improving gig workers’ compensation and benefits, could threaten the very business models that allow for this independent work in the first place. Indeed, some states, most notably California, have even proposed converting all gig workers into traditional employees.Alex MacDonald discusses their implications for the future of gig work and, perhaps, a better way forward.Featuring:- Alexander MacDonald, Littler Mendelson PCVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

In this episode, Adam Thierer and Caleb Watney discuss the emerging questions surrounding the progress of driverless car technology and its regulation.Featuring:- Adam Thierer, Senior Research Fellow, Mercatus Center, George Mason University- Caleb Watney, Fellow, Technology and Innovation, R Street Institute Visit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.

Do recent state privacy rules, like California's CCPA, impinge on free speech, violate the dormant commerce clause, or are they preempted by other federal laws? Ian Adams and Jennifer Huddleston discuss.Featuring:- Ian Adams, Vice President of Policy, TechFreedom- Jennifer Huddleston, Research Fellow, Mercatus Center, George Mason UniversityVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.