RTP's Fourth Branch Podcast

Federal regulations have accumulated over many decades, so much that it would require over three years to read through them all if you started today. The buildup of regulations over time leads to duplicative, obsolete, conflicting, and even contradictory rules and the multiplicity of regulatory constraints complicates and distorts the decision-making processes of firms operating in the economy. Firms respond to both individual regulations and regulatory accumulation by altering their plans for research and development, for expansion, and for updating equipment and processes. Because of the important role innovation and productivity growth play in an economy, these distortions may have consequences for the growth of the economy in the long run. McLaughlin will discuss his recent study (with Duke University professors Bentley Coffey and Pietro Peretto) that examines regulation’s effect on firms’ investment choices and, consequentially, on economic growth. Using a 22-industry dataset that covers 1977 through 2012, the study finds that regulation—by distorting the investment choices that lead to innovation—has created a considerable drag on the economy, amounting to an average reduction in the annual growth rate of the US gross domestic product (GDP) of 0.8 percent. KEY FINDINGSEconomic growth in the United States has, on average, been slowed by 0.8 percent per year since 1980 owing to the cumulative effects of regulation:- If regulation had been held constant at levels observed in 1980, the US economy would have been about 25 percent larger than it actually was as of 2012.- This means that in 2012, the economy was $4 trillion smaller than it would have been in the absence of regulatory growth since 1980.- This amounts to a loss of approximately $13,000 per capita, a significant amount of money for most American workers.Featuring:- Patrick McLaughlin, Director, Program for Economic Research on Regulation, Senior Research Fellow, Mercatus CenterVisit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.

Pursuant to a modern interpretation of a 100-year old law, every American who owns a cat, drives a car, or owns a home with windows is a potential criminal. The Migratory Bird Treaty Act is a strict liability statute that was passed in 1918 to prevent commercial hunting and poaching from driving migratory birds into extinction. Decades later, government lawyers began using this hunting and poaching law to prosecute people for accidental bird deaths resulting from otherwise lawful activity. The result was the imposition of a greater duty to protect the lives of birds, prosecutorial discretion to decide which people and industries would be held to account for “incidental takings,” and a collection of formal and informal guidance from enforcement agencies about how to comply to avoid jail time and heavy fines. On this call, hear how we got here, what the Department of the Interior is doing in this regulatory space, and what effect the DOI’s actions will have. Featuring: Gary Lawkowski, Counselor to the Deputy Secretary, Department of the Interior Visit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.

Armand Lauzon created a cutting-edge business called Project Belle. Belle is a service that connects consumers directly with health and beauty professionals for in-home or at-work care in Tennessee. A Tennessee salon owner who “found this type of competition highly disturbing” reported Lauzon’s business to the Tennessee State Board of Cosmetology. The Board determined that Belle had run afoul of a regulation that makes it illegal in Tennessee to practice cosmetology outside of a brick-and-mortar salon. The Board issued Lauzon a $500 penalty and a cease-and-desist notice. Believing his business model to be outside the scope of the regulation—Lauzon does not own a salon and does not perform cosmetology services himself—and indeed the Board’s authority, Lauzon challenged the Board’s order.Join us for this Deep Dive podcast to hear the full story of Project Belle and the Tennessee State Board of Cosmetology.Featuring:- Armand Lauzon, Founder & CEO, Belle- Braden H. Boucek, Director of Litigation, Beacon Center of TennesseeVisit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.

Federal regulation strictly limits how pharmaceutical companies share information about the legal use of their products. Companies that promote or advertise the use of medicines or medical devices in ways that the Food and Drug Administration (FDA) has not approved—so-called “off-label use”—are subject to prosecution for the crime of “misbranding.” In other words, it is legal—and very common—for a physician to prescribe a medicine or to use a device for an off-label purpose but, it is illegal for a company to talk about it. This regulatory framework has been defended, in part, as necessary to prevent companies from misleading the public about drug risks and effectiveness. Others argue that this limitation amounts to impermissible speech regulation upon those with the most knowledge about drugs and their possible uses and side effects.This podcast will cover the First Amendment implications of the FDA's regulation, legal history and major court decisions and settlements, and how state governments are handling the issue.Featuring:- Christina Sandefur, Executive Vice President, Goldwater InstituteVisit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.

Is the Newest Part of the Copyright Act Antiquated? Unchaining Creativity and Innovation.Nearly twenty years ago, Congress passed the Digital Millennium Copyright Act (DMCA) to combat online infringement. According to some critics, this most recent major update to the Copyright Act is one of the most outdated parts of the law. The discontent stems from the DMCA's "notice and takedown system," which obligates online services to take down pirated works posted by users, but only after the owner identifies the specific file at a specific location on its server. If another copy – or many other copies – of that same file pop up on the same service, each requires a new and separate notice. The authors of the DMCA likely never envisioned the speed and scale of online infringement. Last year, copyright owners sent Google well over 900 million takedown requests. Small creative businesses and individual creators find it impossible to keep up. Neither creators nor online services are satisfied with this state of affairs, although each disagrees strongly as to what to do about it. Is the DMCA an imperfect, but workable solution to a challenging problem? Or has it become outdated and impractical? What are the merits and costs of potential reforms?This live podcast is held in conjunction with the release of a paper authored by members of the Regulatory Transparency Project's Intellectual Property working group. The paper is called "Creativity and Innovation Unchained: Why Copyright Law Must be Updated for the Digital Age by Simplifying It." This paper, which discusses the DMCA notice and takedown issue, is available for viewing and download at https://regproject.org/paper/creativity-innovation-unchained-copyright-law-must-updated-digital-age-simplifying/.Featuring:- Jennifer L. Pariser, Vice President of Copyright and Legal Affairs, Motion Picture Association- Maria Schneider, GRAMMY Award Winning Artist - Mark. F. Schultz, Associate Professor of Law, Southern Illinois University School of LawVisit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.

For about a decade, some legal scholars have urged the Federal Communications Commission (FCC) to regulate the Internet to ensure "net neutrality," a content nondiscrimination standard for Internet service providers like Comcast and Verizon. This concept has gained popular support, particularly among young adults and those in the tech industry. In 2015, at the behest of President Barack Obama, the FCC created net neutrality regulations and cited Title II of the Communications Act of 1934 as its authority. However, there are other legal scholars who have pushed back. Some FCC commissioners even view the rules and the asserted legal authority as illegitimate and as a threat to free speech online, the development of new technology services, and telecom industry investment. In December 2017 the Republican commissioners, who now form a majority, appear ready to totally repeal the 2015 net neutrality regulations. Brent Skorup will discuss the history of the net neutrality movement, the 2015 rules, the First Amendment issues at stake, and the effect of repealing the rules. Featuring:- Brent Skorup, Research Fellow in the Technology Policy Program, Mercatus Center at George Mason UniversityVisit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.

Should software be regulated like a military weapon? That's the direction in which most Western nations seem to be moving, under the guidance of the international Wassenaar Arrangement governing international export controls. During its 2013 plenary session, the Wassenaar member nations agreed to implement export controls for (1) software, hardware, and technology that generate, operate, deliver or communicate with "intrusion software"; and (2) "carrier class" IP network communications surveillance items. The purpose of these controls was to protect activists and opposition figures from monitoring by authoritarian governments and to keep software and technology out of the hands of malicious hackers.But the agreed-to controls control not only malicious "intrusion" software items, but virtually any type of software, hardware, and technology designed to counter "intrusion" software. The controls have also been ineffective in actually reaching their intended targets—barring specific companies from exporting specific tools to specific end-users for specific purposes—and international implementation has been widely divergent. Featuring:- Alan Cohn, Counsel, Steptoe & Johnson LLP- Stewart Baker, Partner, Steptoe & Johnson LLP- [Moderator] Matthew Heiman, Vice President, Corporate Secretary & Associate General Counsel, Johnson ControlsVisit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.

On Friday, October 6, Treasury issued the second of its reports to the President on Core Principles for Financial Supervision. When it comes to financial regulation, the Treasury Department has little formal authority. Yet, when Treasury wants to, it can set the tone and drive the priorities. Did the Treasury do that with its most recent report and its June report? What difference might this all make with regard to financial reform? And what might we expect from the Federal Reserve, the FDIC, the OCC, and other financial regulators in response to these reports? Featuring:- J.W. Verret, Assistant Professor of Law, Antonin Scalia Law School- Wayne Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers AssociationVisit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.

On this episode of the Fourth Branch podcast, Gregory McNeal, Pepperdine Law Professor and Chairman of the RTP’s IT and Emerging Technology working group, partners with Mercatus Senior Research Fellow Adam Thierer to discuss the law and policy frameworks impacting emerging technologies. Their talk explores the idea of permissionless innovation, collaborative acceleration, and why a cross-cutting working group focused on emerging technology is necessary for the Regulatory Transparency Project.Featuring:- Gregory McNeal, Professor of Law, Pepperdine University School of Law- Adam Thierer, Senior Research Fellow, Mercatus CenterVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

On August 16, the Department of Justice issued a letter repudiating the Department’s participation in an initiative known as “Operation Choke Point” during the Obama administration. Operation Choke Point sought to deprive members of disfavored industries, such as payday lenders and firearms dealers, of the right to access the banking system. This live podcast will discuss Operation Choke Point, the Department of Justice Letter, and litigation against federal agencies who have participated in Operation Choke Point.Featuring:- Pete Patterson, Partner, Cooper & Kirk, PLLCVisit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.