In their last pre-election episode, Richard and Adam discuss Judge Barrett’s Senate confirmation hearings; the Supreme Court’s next Obamacare case; and social media companies’ power over information itself.

Administrative Law scholars think of 1946 as the year that Congress enacted the Administrative Procedure Act. But too often we neglect another major law that Congress enacted in that year: the Legislative Reorganization Act.

The LRA was intended to position Congress for long-term management of the administrative state. But its proponents were disappointed to see major provisions dropped from the final bill, and after its enactment the LRA generally failed to live up to its framers’ expectations. How can the LRA inform debates about Congress today? And how should the LRA help us to understand the 1946 Congress’s goals for the APA itself?

Today’s guest is Professor Joshua Wright — a University Professor of Law at George Mason University, Director of the law school’s Global Antitrust Institute, a former FTC Commissioner, and one of the nation’s leading scholars of antitrust law and policy. Professor Wright and Jan Rybnicek recently co-authored an essay on recent calls to use antitrust law to regulate or break up “big tech” companies. The essay is titled “A Time for Choosing: The Conservative Case Against Weaponizing Antitrust,” and it is among the first essays in a series published by National Affairs, a quarterly journal on policy.

The series, edited by the Gray Center’s Executive Director, Adam White, is “Big Tech, Big Government: The Challenges of Regulating Internet Platforms.” In this episode, Professor Wright discusses his essay, particularly in light of the new House Judiciary Committee staff report calling for government regulation or break-up of Amazon, Apple, Facebook, and Google.

On September 24, 2020, the Gray Center co-hosted a live webinar, “After 50 Years, What Is the National Environmental Policy Act Today?” in partnership with Antonin Scalia Law School’s Society for Environmental and Energy Law. On January 1, 1970, President Nixon signed the National Environmental Policy Act (NEPA) into law. A briefly worded but powerful law, NEPA requires federal agencies to consider the environmental impacts of the actions that they take, and the actions that they authorize others to take.

Fifty years later, how should we think of how NEPA has been implemented, and how it might be implemented in the years ahead? This webinar brought together two leading experts to tackle these questions: Professor E. Donald Elliott of Scalia Law, Yale Law, and Covington & Burling; and Professor Michael Gerrard of Columbia Law. The discussion was moderated by the Gray Center’s Executive Director, Adam White, with welcome remarks from Scalia Law student Gary Bridgens, president of the Society for Environmental and Energy Law.

Today’s guest is Professor Adam Mossoff, a leading scholar of intellectual property and Co-Founder of Scalia Law’s Center for the Protection of Intellectual Property (CPIP). Three years ago, CPIP and the Gray Center co-hosted a major conference on the Patent Trial and Appeal Board (PTAB), a new regulatory body empowered to revoke companies’ patents through an administrative process instead of a judicial trial. Months later, in Oil States Energy Services v. Greene’s Energy Group, the Supreme Court upheld the PTAB’s constitutionality, and declared patent rights to be “public rights”—a discretionary grant of privilege by the executive branch, revokable at will. This decision had major ramifications for both intellectual property law and the innovation economy that rests on that body of law. In today’s episode, Professor Mossoff and Adam White revisit the Oil States decision—the issues, and the impact.

It is difficult to exaggerate Justice Antonin Scalia’s outsized impact on American constitutional law. Originalism and textualism, the interpretive methods he championed throughout his career, are key themes in today’s legal landscape thanks in large part to his elegant and witty defense of their merits.

In this episode of Unprecedential, two former Scalia clerks, Sixth Circuit Judge Jeffrey Sutton and the Ethics and Public Policy Center’s president Ed Whelan, join Adam to talk about the recent compilation of Scalia’s writings they edited, The Essential Scalia: On the Constitution, the Courts, and the Rule of Law.

We admit it, administrative law is a complicated subject — and, some say, a notoriously dull one. AdLaw is often a challenging subject to teach in the classroom, and even more challenging outside of it. The Gray Center is only one of several institutions that attempt to bring these issues to non-specialists. Another is Ballotpedia.org: Two years ago it created an Administrative State Project to serve as a public resource on administrative law, and today its encyclopedic website offers hundreds of pages of educational materials on the administrative state’s modern work and historical underpinnings. In this episode, Adam is joined by Christopher Nelson, who manages Ballotpedia’s Administrative State Project.

Featuring Christopher Nelson and Adam White.

Days after the sad news of Justice Ruth Bader Ginsburg’s death, Richard Epstein offers some reflections upon the late justice. Then he and Adam White discuss the prospects for a Senate confirmation of President Trump’s upcoming nominee, either before or after the election. Finally, they discuss Attorney General Barr’s Constitutional Day speech on the Justice Department’s structure and traditions.

The Federal Trade Commission is a century-old agency facing some of the most cutting-edge technologies and issues of our time. How should an agency apply old laws to new technologies?

To conclude the Gray Center’s series of podcast conversations on innovation and regulation, Commissioner Noah Phillips joins Adam White to discuss issues ranging from the nondelegation doctrine, to agency structure and process, to issues like market competition and personal privacy. This live webinar was recorded on September 2, 2020.

During this era of disruptive technological change, heavy-handed regulation can stifle innovation and unintentionally undermine the public interest. Yet regulators are tasked by Congress with promoting particular policies, often under old statutes with outdated information. How can regulators best do their jobs in a way that promotes innovation and the public interest?

In a pair of new Gray Center working papers, Gus Hurwitz (University of Nebraska) and Geoffrey Manne (International Center of Law & Economics) offer two new ways to think of the regulatory task: “Regulation as a Discovery Process,” in which the regulatory process is geared toward promoting the creation and spread of knowledge; and “Regulation as Partnership,” in which the regulators and the regulated see each other in less adversarial terms.

Conversations about “the administrative state” usually focus on federal regulators, but for many upstart tech companies, local regulation often presents the most significant challenges. Uber and Lyft, for example, famously collided with local taxicab regulations. And “short-term rental” companies like AirBNB have faced countless regulations from countless regulators.

That is the subject of a new Gray Center Working Paper by Professor Jordan Carr Peterson (North Carolina State). In “Zoning for Disruption,” he finds that AirBNB’s arrival in a city can trigger significant regulatory responses not spurred by less-famous short-term rental companies. He describes that dynamic, and the wide range of regulations at issue.

Nearly 25 years ago, Congress enacted Section 230 of the Communications Decency Act, declaring web sites would not be treated as “publishers” in posting third-party statements, and that their “good faith” efforts to edit or moderate content would not expose them to legal liability. In those days, this legal protection helped the early generation of Internet web sites grow and change the world. Today, Section 230 has become the central focus of today’s debates surrounding Facebook, Twitter, and other Internet platforms.

In this episode, Enrique Armijo (Elon University) and Matthew Feeney (Cato Institute) join Adam White to discuss the Gray Center Working Papers that they recently published on the Section 230 debates, and the broader technological and policy issues at stake.

Americans are all too aware of the partisan warfare involved in recent nominations to the Supreme Court. Heated political frenzy accompanied Brett Kavanaugh, Merrick
Garland, and Neil Gorsuch on their path to reaching (or being denied) a seat on the nation’s highest bench. How much further will the Supreme Court nomination battles escalate? How did we get here? How much of today’s vitriolic atmosphere surrounding the nomination process is business as usual, and how much is it a symptom of our polarized era?

Ilya Shapiro, author of the forthcoming book Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court, joins Adam on this episode of Unprecedential todiscuss the fascinating and sometimes unexpected history of Supreme Court nominations. This history involves idiosyncratic moments, such as men being confirmed to the Supreme Court before they even knew they were nominated in the earliest days of the republic. There are also interesting anecdotes of nominations past, including the fact that hearings for judicial nominees began only in the 1930s.

In today’s (admittedly bleak) episode, Richard and Adam consider proposals to give the Federal Reserve even broader powers; and problems in the run-up to the presidential election; and problems that might happen after votes are cast; and President Trump’s call to defund “anarchic” cities. Adam looks for the sunny side, but he doesn’t find it.

Philip Howard, a lawyer and author, founded Common Good to call for fundamental reform of America’s bureaucratic, legal, and political institutions. And he sees the nation’s most recent controversies—government responses to Covid-19, and episodes of police misconduct—as exemplifying the breakdown of governance and social trust. In a July op-ed for USA Today, he wrote that “America needs a new public operating system that re-empowers people with responsibility to deal sensibly with” matters of governance.

How would we “reboot” America’s “operating system”? And, more fundamentally, what is “the common good”—and how can Americans work together to advance it? To discuss these themes, he joins Adam White for today’s episode.

Every presidential election involves at least some uncertainty. But usually the uncertainty is the outcome—not the process itself. In 2020, however, with COVID-19 complicating every aspect of our lives, there is great uncertainty around how the basic processes of casting and counting votes will work.

Will polling places be staffed? Will significant expansion of mail-in voting be sustainable? Will the Electoral College be able to complete its work in accordance with constitutional and statutory deadlines? The elections will present a tangle of legal problems, complicating both people’s exercise of their right to vote and their faith in the security and legitimacy of electoral process itself.

In today’s episode, Richard and Adam discuss TikTok’s newly filed lawsuit against President Trump, and the executive order that it challenges. Then they turn to “law & order” themes in the Republican and Democratic Parties’ conventions, before discussing the federal government’s and state governments’ handling of Covid-19.

Since the election of Donald Trump, Americans have been sharply divided in their views of his presidency. Has he preserved the Founding Fathers’ vision of an energetic executive? Or has President Trump, in his quest for executive efficiency, sidestepped crucial constitutional constraints? This episode presents John Yoo and Adam White’s conversation from the July 28 AEI webinar on John’s new book, Defender in Chief: Donald Trump’s Fight for Presidential Power. During their conversation, John and Adam examine Donald Trump’s performance as president. But they also unearth and discuss deeper theories about the nature of executive power. John contends that president have a “power to reverse,” meaning a vastly consequential policymaking power to modify the decisions of previous administrations. John also sees a vital role for presidents, not just the Supreme Court, in defending the Constitution. In this episode, Adam and John consider and debate these ideas and others that animate American constitutionalism today.

The post Defender in Chief: John Yoo on President Trump and executive power appeared first on American Enterprise Institute – AEI.

The fourth year of any presidential term is driven by a sense of urgency, and the administration’s regulatory or deregulatory agenda is no exception. President Trump’s fourth year has been further complicated by the Covid-19 outbreak, and the administration’s regulatory and deregulatory responses. To put the last few months into perspective and to look ahead to the coming months, Adam White chats with Bridget Dooling of George Washington University’s Regulatory Studies Center, and Philip Wallach of the R Street Institute.

When George Washington’s Administration proposed to create a national bank, it exploded divisions among Americans—and, more specifically, among Alexander Hamilton and James Madison—about what our Constitution means. The Bank, and the arguments surrounding it, continue to echo today.

To discuss the Bank of the United States, Adam was joined on the podcast by AEI’s own Jay Cost, who has written about Madison’s concerns that the Bank and other federal initiatives would foster corruption and oligarchy. (See especially his recent two-part AEI essay series.) Jay and Adam discuss problems inherent in factionalism, private-public partnerships, established churches—and whether Madison would have ever admitted that Hamilton was right about the Bank.