RTP's Fourth Branch Podcast

The approach the FDA has taken to regulating e-cigarettes and vape products, particularly those that are flavored, has been the topic of conversation for some years. Experts debate the best methods for review, risks and benefits involved in such products, and the means by which the FDA reviews such applications. Jeff Stier joined us to discuss a recent Fifth Circuit decision (Wages and White Lion Investments, L.L.C., doing business as Triton Distribution v. FDA) concerning the FDA's approval (or lack thereof) of flavored cartridge e-cigarettes --the state of the flavored e-cigarette market, the facts of this case, the existing circuit split, and the potential ramifications of this decision moving forward. Featuring: Jeff Stier, Senior Fellow, Consumer Choice Center

What are bias response teams (BRTs)? What role do they play on American college campuses? And how is freedom of speech under the First Amendment involved? In this Fourth Branch Explainer podcast, experts Jonathan Butcher and Jon Riches briefly explain the intellectual foundations of bias response teams, how these systems operate on American college campuses, and how legal protections such as due process and freedom of speech are involved. Featuring: Jonathan Butcher, Will Skillman Fellow in Education, Center for Education Policy, The Heritage Foundation Jon Riches, Director of National Litigation, Goldwater Institute

This is a podcast version of a live webinar held on December 13, 2023. The webinar was co-sponsored by the Regulatory Transparency Project & the Religious Liberties Practice Group. *** In Bella Health and Wellness v. Weiser, a Colorado faith-based healthcare provider is challenging a recent Colorado law banning a treatment commonly known as abortion pill reversal on the grounds it forced them to violate their religious beliefs. The law, passed in April 2023, makes it illegal for healthcare professionals to offer progesterone (a naturally occurring hormone crucial to a healthy pregnancy) to women who have taken mifepristone as part one in a two-step abortion pill regimen but who subsequently want to maintain their pregnancy. The law imposes significant fines and jeopardizes the medical licenses of those who provide or advertise using progesterone to reverse the effects of an abortion pill. Bella Health, founded by Catholic mother and daughter nurse practitioners Dede Chism and Abby Sinnett, which has traditionally offered this route of care for women as a part of its life-affirming OB-GYN practice, filed in the U.S. District Court for the District of Colorado for an injunction to stop the law from going into effect. A limited injunction was issued in late April, pending reports by the state's Medical, Nursing, and Pharmacy licensing boards. The last of those regulations were issued in September. The next day, Bella again asked the Court for injunctive relief. In an order issued on October 21, 2023, the district court preliminarily enjoined Colorado from enforcing the law, and the case remains live.

Moderated by Brent Skorup, experts Timothy B. Lee, Professor Pamela Samuelson, and Kristian Stout discuss the emerging legal issues involving artificial intelligence, and its use of works protected under copyright law. Topics include how artificial intelligence uses intellectual property, whether allegations of violations of intellectual property are analogous to prior historical challenges or are novel, and the tradeoffs involved.Featuring:Timothy B. Lee, Understanding AIPamela Samuelson, Richard M. Sherman Distinguished Professor of Law and Professor of School Information at the UC Berkeley School of Law and Co-Director, Berkeley Center for Law & TechnologyKristian Stout, Director of Innovation Policy, International Center for Law & EconomicsModerator: Brent Skorup, Senior Research Fellow, Mercatus Center at George Mason University*******As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

This Term, the Supreme Court will hear Loper Bright Enterprises v. Raimondo—a case concerning judicial deference to agency interpretations of ambiguous statutes. Pursuant to Chevron v. NRDC and follow-on cases, courts defer to agency interpretations of ambiguous statutes. Loper Bright offers the Court an opportunity to abandon Chevron deference entirely. But the phrasing of the Question presented in Loper Bright also presents an off-ramp for the Court, allowing it to keep Chevron’s framework intact. How the Court resolves Loper Bright will have massive implications for administrative law. On this panel, three distinguished administrative law scholars discuss the task before the Court in Loper Bright and the future of Chevron deference. Featuring: Prof. Nicholas Bagley, Professor of Law, University of Michigan Law School Prof. Christopher J. Walker, Professor of Law, University of Michigan Law School Prof. Ilan Wurman, Associate Professor, Sandra Day O’Connor College of Law, Arizona State University (Moderator) Eli Nachmany, Former Law Clerk to Hon. Steven J. Menashi, U.S. Court of Appeals for the Second Circuit

It may surprise some to know that the government has definitive racial classifications for Americans, and it can be still further intriguing to find that the agency tasked with collecting, recording, and managing this data is the Office of Management and Budget. In this podcast, Prof. David Bernstein, author of Classified: The Untold Story of Racial Classification in America, joins us for an explanation of why this is and how we got here. Featuring: Prof. David Bernstein, University Professor of Law and Executive Director, Liberty & Law Center, Antonin Scalia Law School, George Mason University

In September, a panel of judges on the Fifth Circuit Court of Appeals heard oral argument in Illumina v. Federal Trade Commission. Earlier this year, the Federal Trade Commission (FTC) ordered biotechnology company Illumina to unwind its $8 billion acquisition of Grail, a cancer-screening startup. This case began with a 2021 administrative complaint challenging the transaction. In September 2022, the FTC’s administrative law judge (FTC) concluded that the FTC “failed to prove its asserted prima facie case that Illumina’s post-Acquisition ability and incentive to advantage Grail to the disadvantage of Grail’s alleged rivals is likely to result in a substantial lessening of competition in the relevant market.” The FTC complaint counsel appealed the decision of the ALJ to the commissioners, who then voted to overturn the ALJ’s decision, ordering Illumina to divest the acquisition. The case is now pending before the Fifth Circuit.Please join us as we break down oral argument and discuss the broader implications of Illumina v. FTC.Featuring:Ashley Baker, Director of Public Policy, Committee for JusticeJohn B. Kirkwood, Professor of Law, Seattle University School of LawModerator: Adam Mossoff, Professor of Law, Antonin Scalia Law School, George Mason University*******As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Six months ago, we experienced bank runs and three of the four largest bank failures in U.S. history. Regulators declared there was "systemic risk" and provided bailouts for large, uninsured depositors. What is the current situation? While things seem calmer now, what are the continuing risks in the banking sector? Banks face huge mark-to-market losses on their fixed-rate assets, and serious looming problems in commercial real estate. How might banks fare in an environment of higher interest rates over an extended period, or in a recession? Reform ideas include a 1,000-page "Basel Endgame" capital regulation proposal. Which reforms make the most sense and which proposals don’t? Our expert and deeply experienced panel will take up these questions and provide their own recommendations in their signature lively manner.Featuring:- William M. Isaac, Chairman, Secura/Isaac Group- Keith Noreika, Executive VP & Chairman, Banking Supervision & Regulation Group, Patomak Global Partners- Lawrence J. White, Robert Kavesh Professorship in Economics, Leonard N. Stern School of Business, New York University- [Moderator] Alex J. Pollock, Senior Fellow, Mises InstituteVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

For the past thirty years, the Magnuson-Stevens Act (MSA) has given the National Marine Fisheries Service (NMFS), an arm of the National Oceanic and Atmospheric Association (NOAA), the authority to place third-party observers on commercial fishing boats. Those observers have largely been federally funded except in certain limited instances where the MSA provides NMFS with the power to collect fees from the regulated industry. When NMFS and the New England Fishery Management Council decided to explore the possibility of increased discretionary monitoring in the Atlantic herring fishery, however, they realized the federal government would be unable to pay for additional monitoring. The solution was a rule that would instead shift the cost of increased coverage to small businesses—the fishermen themselves. NMFS estimated the cost of industry-funded monitoring in the herring fishery would run upwards of $700 per day and lead to a 20% reduction in most of the fleet’s net revenue. If the story sounds familiar, that’s because the 2022 Academy Award Best Picture, CODA, concerns the same kind of industry-funded monitoring scheme in New England’s storied groundfish fishery. Up and down the Atlantic seaboard, commercial fishermen have long protested they are facing an onslaught of overlapping and ever-increasing state and federal regulations, all while fishing quotas and revenue continue to decline. NMFS, in the face of multiple lawsuits, has sought to justify industry-funded monitoring as a compliance cost necessary to preserve fishing stocks. Moreover, the agency has relied on Chevron deference to defend its reading of the MSA. In May 2023, the Supreme Court agreed to hear Loper Bright Enterprises v. Raimondo, a lawsuit brought by a group of herring fishermen from Cape May, NJ challenging NMFS’s industry-funded monitoring rule. Rather than agreeing to directly address NMFS’s interpretation of its authority under the MSA, however, the Court agreed to consider whether Chevron v. NRDC should be overruled or, alternatively, clarified such that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in a statute does not constitute an ambiguity requiring deference to an agency. The implications of Loper Bright are tremendous across multiple agencies and regulatory spaces—it could turn out to mark a defining shift in administrative law. Featuring: Ryan Mulvey, Counsel, Cause of Action Institute Eli Nachmany, Former Law Clerk to Hon. Steven J. Menashi, U.S. Court of Appeals for the Second Circuit

In May, the EPA proposed a new rule to regulate greenhouse gas emissions from new and existing power plants. This is a third attempt by the EPA to regulate these emissions. The Supreme Court struck down the Obama administration’s Clean Power Plan in West Virginia v. EPA, which was the first time the Court formally acknowledged and explicitly relied on the “major questions” doctrine. The DC Circuit had previously struck down the Trump Administration’s Affordable Clean Energy Rule and, although West Virginia involved an appeal of that decision, the Supreme Court did not rule on the Trump Administration’s rule.The new rule’s supporters say it’s well in line with EPA’s statutory authority, the state of the electric markets, and available emissions-reduction measures. Its opponents say it is legally flawed and threatens grid reliability. What are the potential legal and policy issues associated with the proposed rule? Does it raise “major questions” issues? Is the agency relying upon unproven technology in violation of the statutory requirement that its standards be based only on the “best system of emission reduction” that “has been adequately demonstrated?” Does this rule violate state prerogatives for regulating existing sources? Join us as we explain the rule and then discuss the legal and policy issues it raises.Featuring:Jeffrey Holmstead, Partner, Bracewell LLPKevin Poloncarz, Partner, Covington & Burling LLPJustin Schwab, Founder, CGCN Law, PLLC[Moderator] Daren Bakst, Director of the Center for Energy and Environment and Senior Fellow, Competitive Enterprise Institute*******As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.