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...

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...

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...

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...

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...

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,...

On President Biden’s first day in office, he signed Executive Order 13985: Advancing Racial Equity and Support for Underserved Communities Through the Federal Government. He then signed Executive Order 14035: Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce later that year on June 25, 2021. Taken together, these orders outline what President Biden has described as an “ambitious whole-of-government equity agenda.” Executive branch agencies are now charged with...

In October 2022, President Biden issued an executive order regarding the European Union - U.S. Data Privacy Framework. The Framework allows for data flows between the EU and the U.S., and it was established after the European Court of Justice struck down a prior agreement known as the EU-U.S. Privacy Shield. The executive order addresses U.S. collection of signals intelligence, which has been a source of concern for EU regulators and privacy advocates. The executive order limits signals...

As children's lives become increasingly digital, how can we protect their safety online while weighing potential trade-offs like privacy interests and free speech? Join us for a panel discussion examining the complex legal and ethical implications of enacting age verification requirements for access to social media and adult websites. The panel will dive into regulatory and legislative proposals and efforts, the role of tech companies and educational institutions, and the technological...

Eleventh Annual Executive Branch Review Conference — EBRXI Theme: Transparency, Accountability, and the Administrative State The White House recently released much-anticipated changes to federal regulatory practices, including a new Executive Order 14094 on “Modernize Regulatory Review,” draft revisions to Circular A-4 governing regulatory impact analysis, and draft guidance on meetings with entities outside of the executive branch. The Office of Information and Regulatory Affairs (OIRA) has...

During President Obama’s second term, the U.S. Education Department began sharing studies indicating that black students were disciplined at higher rates than their white peers. These data were viewed as evidence of racial bias, and, in 2014, the Education and Justice Departments jointly published a resource package to help American schools “…promote fair and effective disciplinary practices that will make schools safe, supportive, and inclusive for all students,” (DOJ). Supporters...

Join us for an in-depth exploration into the SEC's recent lawsuit against Coinbase – a case that will no doubt influence the legal landscape of crypto asset trading and securities laws well into the future. The SEC alleges that Coinbase has operated its trading platform as an unregistered exchange, broker, and clearing agency, and further contends that Coinbase's staking-as-a-service program has been unlawfully engaged in securities offerings. On the other hand, Coinbase has challenged the...

What does it take to attract the world's most brilliant minds? In this Tech Roundup episode, Caleb Watney and Adam Thierer explore the United States’ approach towards highly skilled immigration, its impact on innovation and economic growth, and how it might be improved going forward. They begin by looking backwards, highlighting contributions from scientific refugees that led to remarkable advances such as the Manhattan Project. The conversation then delves into present-day legislative...

The debate over the electrification agenda and its implications for consumer choice and the environment remains contentious. As federal agencies like the U.S. Consumer Product Safety Commission and The Department of Energy look to regulate natural gas home appliances, many consumers have questions: where does the federal government draw authority to regulate climate? What potential health risks and price impacts loom over natural gas and electric appliances? Should consumers have the choice...

Regulatory modernization has been a topic of nationwide interest in recent months. With its recently revised Circular A-4, the federal Office of Information and Regulatory Affairs has embraced an approach that could potentially lead to a massive expansion in the regulatory state. At the same time, the Commonwealth of Virginia has been pursuing a very different approach. Governor Glenn Youngkin issued an executive order, EO 19, which strives to reduce regulatory burdens by 25% while...

Affirmative action plans, though perhaps most associated with college admissions and higher education, actually crop up in a wide array of spaces, including in the context of employment. In this podcast, Eric Dreiband breaks down how Title VII of the Civil Rights Act of 1964 applies in the context of voluntary affirmative action plans. He explains not only what the criteria for such plans are, but also the risks employers should consider, what, if anything, has changed post SFFA v. Harvard,...

Are we ready to live under the watchful eye of drones? In this Tech Roundup podcast, Trace Mitchell (Institute for Justice), Brent Skorup (Mercatus Center), and Jay Stanley (ACLU) discuss the rapid adoption of drone technology by law enforcement entities and the legal and policy implications of this trend. They provide insights into recent court cases involving warrantless drone surveillance, spotlighting the difficulty in applying previous Fourth Amendment jurisprudence to this new...

The National Marine Fisheries Service (NMFS), an arm of the National Oceanic and Atmospheric Administration (NOAA), recently saw one of its major agency efforts that placed severe limits on the Maine lobster fishing industry in the name of protecting right whales from being entangled in fishing gear rejected by the DC Circuit Court of Appeals. The far-reaching impact of NMFS’s rule on the Maine $1.5 billion dollar lobster fishing industry was widely reported, resulting in multiple lawsuits,...

Our Nation’s environmental laws and regulations are designed to foster the responsible use of natural resources while ensuring air, water, and land that is clean and safe for the citizenry as well as fish and wildlife. The U.S. Environmental Protection Agency (EPA), the U.S. Department of Justice (DOJ), and states are tasked with working cooperatively to ensure that these laws are faithfully enforced in a fair, consistent, and unbiased manner. Across industries, compliance with...

Our Nation’s environmental laws and regulations are designed to foster the responsible use of natural resources while ensuring air, water, and land that is clean and safe for the citizenry as well as fish and wildlife. The U.S. Environmental Protection Agency (EPA), the U.S. Department of Justice (DOJ), and states are tasked with working cooperatively to ensure that these laws are faithfully enforced in a fair, consistent, and unbiased manner. Across industries, compliance with environmental...

This year's sudden collapse of First Republic, Silicon Valley, and Signature banks were the second, third, and fourth largest bank failures in US history, bringing perceived systemic risk and bailouts of wealthy depositors. In addition, the global Credit Suisse bank collapsed and commercial real estate losses threatened. Politicians, regulators, and bankers are debating why the massive regulatory expansion following the last crisis didn't prevent the renewed failures. Some emphasize...

On June 3, President Biden signed into law H.R. 3746, the Fiscal Responsibility Act of 2023 (Public Law 118-5). The Act made significant changes to federal permitting for major infrastructure projects, including the first significant amendments to the National Environmental Policy Act (NEPA) in its history. In this webinar, experts aim to shed light on the implications of these changes for our nation's environmental policy framework. Our distinguished panelists will provide expert analysis...

The plaintiffs in Utah v. Walsh filed a motion to halt implementation of the Department of Labor’s new rule, which provides increased flexibility for retirement plan fiduciaries to consider environmental, social, or governance (ESG) factors when making investment decisions and exercising shareholder rights. This coalition of 26 states, energy companies, a trade association, and private individuals argues that the new rule undermines the protections established by the Employee Retirement...

In the past several months, President Biden released a new national cybersecurity strategy. As part of that strategy, the Administration says that it will seek to “Shape Market Forces to Drive Security and Resilience – We will place responsibility on those within our digital ecosystem that are best positioned to reduce risk and shift the consequences of poor cybersecurity away from the most vulnerable in order to make our digital ecosystem more trustworthy, including by: . . . Shifting...

Following concerns about the information collected by and influence of the immensely popular Chinese-owned social media app TikTok, debates have sprung up: should TikTok be banned? Some contend that TikTok poses a tangible and imminent threat to the United States’ national security, and that as such it should be banned immediately. Others assert it is a valuable and important platform for free speech, and that a full ban would violate citizens’ rights. These contrasting positions raise some...