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.

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.

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 Yet regulators are tasked by Congress with promoting particular policies, often under old statutes with outdated information.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.

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.

The words “executive privilege” are not found in the Constitution, but some form of presidential secrecy has been asserted by presidents from George Washington onward. The Supreme Court’s latest term ended with major decisions in two cases involving executive privilege: Trump v. Mazars USA, involving subpoenas from the House of Representatives; and Trump v. Vance, involving subpoenas from a New York district attorney.

How should transformative technologies approach the administrative state, and vice versa? In his latest book, “Evasive Entrepreneurs & the Future of Governance,” Adam Thierer of the Mercatus Center reports that tech companies are finding ways to outpace the regulators—and that this is a very good thing.

In this episode, the Gray Center’s director Adam White interviews Thierer about his book (and his previous book, “Permissionless Innovation”), with an eye to how high-tech companies and governments might help improve each other—for all of us.

On June 18, 2020, the Gray Center co-sponsored a live webinar, “A Discussion on Tort Liability for Businesses During COVID-19,” in partnership with the Law and Economics Center at Antonin Scalia Law School. Risks of the COVID-19 spread create substantial uncertainty for businesses when deciding whether to open up and conduct business, especially as they try to identify their duties in preventing COVID-19 related injuries to employees and customers. Likewise, individuals are uncertain about what level of care they should expect from businesses. This subject is extremely complicated because it involves both federal and state issues, as well as tort law. Debate has begun about whether laws should be drafted which limit or expand the traditional rules of tort liability in light of the unique risks of doing business during a public health crisis. 

The live webinar examined the economic and legal arguments for and against COVID-19-related business liability reform. Panelists included Timothy Lytton, Associate Dean for Research & Faculty Development, and Distinguished University Professor & Professor of Law, Georgia State University College of Law; David B. Rivkin, Partner at BakerHostetler, and the Gray Center’s Executive Director, Adam White. The panel was moderated by Donald J. Kochan, Incoming Professor of Law and Deputy Executive Director of the Law and Economics Center, Antonin Scalia Law School at George Mason University. The video is available at: https://administrativestate.gmu.edu/events/a-discussion-on-tort-liability-for-businesses-during-covid-19/. 

On February 6, 2020, the Gray Center hosted a public policy conference on “Bureaucracy and Presidential Administration: Expertise and Accountability in Constitutional Government.” The conference was inspired in part by James Q. Wilson’s book, Bureaucracy, and Elena Kagan’s article, “Presidential Administration.” The panel sessions centered around new papers the Gray Center helped to incubate on the history of civil service; on presidential power; on bureaucracy; and on several other important questions of expertise and accountability. Keynote remarks on “The Need for Professionalism” were given by Jonathan Rauch, a Senior Fellow at the Brookings Institution.

The fourth and final panel examined non-presidential administration, focusing on two new papers: The first by Yale University’s Brian Libgober on “Agency Failure and Individual Accountability,” and the second on “Judicial Administration” by Arizona State University’s Bijal Shah. Maureen Ohlhausen, former FTC Commissioner and current Partner at Baker Botts, joined the authors in the discussion. The panel was moderated by the Honorable Stephen F. Williams, Senior Judge for the U.S. Court of Appeals for the D.C. Circuit. The papers and video are available at: https://administrativestate.gmu.edu/events/bureaucracy-and-presidential-administration/.

On February 6, 2020, the Gray Center hosted a public policy conference on “Bureaucracy and Presidential Administration: Expertise and Accountability in Constitutional Government.” The conference was inspired in part by James Q. Wilson’s book, Bureaucracy, and Elena Kagan’s article, “Presidential Administration.” The panel sessions centered around new papers the Gray Center helped to incubate on the history of civil service; on presidential power; on bureaucracy; and on several other important questions of expertise and accountability. Keynote remarks on “The Need for Professionalism” were given by Jonathan Rauch, a Senior Fellow at the Brookings Institution.

The third panel looked at the tools of administrative management. It centered around two new papers: One on “Central Clearance as Presidential Management” by Andrew Rudalevige of Bowdoin College, and the other on “Regulating Agencies: Using Regulatory Instruments as a Pathway to Improve Benefit-Cost Analysis” by panelist Christopher Carrigan of the George Washington University’s Trachtenberg School, and his coauthors, Mark Febrizio of the George Washington University Regulatory Studies Center and Stuart Shapiro of Rutgers University. Rudalevige and Carrigan were joined on the panel by Lisa Heinzerling of the Georgetown University Law Center and Susan Dudley of the GWU Regulatory Studies Center. The discussion was moderated by Philip Wallach of the R Street Institute.

On February 6, 2020, the Gray Center hosted a public policy conference on “Bureaucracy and Presidential Administration: Expertise and Accountability in Constitutional Government.” The conference was inspired in part by James Q. Wilson’s book, Bureaucracy, and Elena Kagan’s article, “Presidential Administration.” The panel sessions centered around new papers the Gray Center helped to incubate on the history of civil service; on presidential power; on bureaucracy; and on several other important questions of expertise and accountability. Keynote remarks on “The Need for Professionalism” were given by Jonathan Rauch, a Senior Fellow at the Brookings Institution.

In his presentation, Mr. Rauch discussed professionalism as a lost virtue in modern life and modern administration. The video is available at https://administrativestate.gmu.edu/events/bureaucracy-and-presidential-administration/.

On February 6, 2020, the Gray Center hosted a public policy conference on “Bureaucracy and Presidential Administration: Expertise and Accountability in Constitutional Government.” The conference was inspired in part by James Q. Wilson’s book, Bureaucracy, and Elena Kagan’s article, “Presidential Administration.” The panel sessions centered around new papers the Gray Center helped to incubate on the history of civil service; on presidential power; on bureaucracy; and on several other important questions of expertise and accountability. Keynote remarks on “The Need for Professionalism” were given by Jonathan Rauch, a Senior Fellow at the Brookings Institution.

The second panel examined presidential administration and bureaucracy. It revolved around two new papers: “Restoring Accountability to the Executive Branch” by Philip K. Howard of Covington & Burling, and “Presidential Administration, the Appointment of ALJS and the Future of For Cause Protection” by Paul R. Verkuil of the Administrative Conference of the United States. They were joined in discussion by Ambassador C. Boyden Gray of Boyden Gray & Associates, who is also affiliated with the Gray Center as a Distinguished Senior Fellow and a Member of the Center’s Advisory Council. The panel was moderated by the Gray Center’s Executive Director, Adam White. The papers and video are available at: https://administrativestate.gmu.edu/events/bureaucracy-and-presidential-administration/.

On February 6, 2020, the Gray Center hosted a public policy conference on “Bureaucracy and Presidential Administration: Expertise and Accountability in Constitutional Government.” The conference was inspired in part by James Q. Wilson’s book, Bureaucracy, and Elena Kagan’s article, “Presidential Administration.” The panel sessions centered around new papers the Gray Center helped to incubate on the history of civil service; on presidential power; on bureaucracy; and on several other important questions of expertise and accountability. Keynote remarks on “The Need for Professionalism” were given by Jonathan Rauch, a Senior Fellow at the Brookings Institution.

The first panel examined the bureaucracy, the presidency, and the origins of federal civil service. It focused on a new paper titled, “From Merit to Expertise and Back: The Evolution of the U.S. Civil Service System,” by Joseph Postell of the University of Colorado at Colorado Springs. He was joined in discussion by Claremont McKenna College’s Andrew E. Busch and Virginia Tech’s Brian J. Cook. The panel was moderated by Melanie Marlowe of the Center for Strategic and International Studies. The paper and video are available at: https://administrativestate.gmu.edu/events/bureaucracy-and-presidential-administration/.

On November 15, 2019, the Gray Center hosted a public policy conference on “Technology, Innovation, and Regulation.” For this conference, scholars wrote and presented papers on the way regulation affects technological innovation, and vice-versa. The Gray Center convened expert panels on topics including whether social media should be regulated for “neutrality,” “regulatory sandboxes” and other laboratories of democracy, artificial intelligence and the future of regulation, and disruptive technology and the future of “law,” during which the new research was discussed. Keynote remarks were given by Kate Lauer, an Advisor for Jiko and former Head of Global Regulatory Strategy for PayPal.

The third panel examined artificial intelligence and the future of regulation and focused on a paper on “Algorithmic Accountability in the Administrative State,” which was co-authored by panelist David Freeman Engstrom of Stanford Law School, and David Ho of Stanford University. The panel also featured Melissa Netram of the Commodity Futures Trading Commission and New York University School of Law’s Catherine M. Sharkey. The discussion was moderated by the Gray Center’s Executive Director, Adam White. The paper and videos are available at: https://administrativestate.gmu.edu/events/technology-innovation-and-regulation/.