Fourth Annual Executive Branch Review Conference

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https://fedsoc.org/events/congressional-regulatory-reform-proposals
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Modern statutes and executive orders are intended to ensure that new regulations do more good than harm—that is, to produce more benefits than costs. Despite these nominal protections, some say the accumulation of regulations threaten the nation’s economic growth and well-being. As a result, the 114th Congress is considering various regulatory reform proposals designed to help ensure that new regulations make Americans better off and that existing regulations are evaluated and modified as necessary. Some of the proposals would enhance economic analysis of regulations, while others seek structural reform including stronger legislative control and judicial review of the administrative rulemaking. While none of these bills has been enacted, several of them have bipartisan support and some have passed one house.  Which proposals are best, and why?  Are there proposals yet to be made that would be better yet?

This panel was presented during the Fourth Annual Executive Branch Review Conference on May 17, 2016, at the Mayflower Hotel in Washington, DC.

Welcome & Address:

• Hon. Heidi Heitkamp, United States Senate, North Dakota
• Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

Panel Featuring:

• Hon. Susan E. Dudley, Director of the Regulatory Studies Center, The George Washington University
• Mr. Michael Fitzpatrick, Senior Counsel and Head of Regulatory Advocacy, General Electric Company
• Hon. Jeffrey A. Rosen, Partner, Kirkland & Ellis LLP
• Moderator: Mr. Adam White, Visiting Fellow, Hoover Institution

Speakers

Susan E. Dudley

Michael Fitzpatrick

Heidi Heitkamp

Dean Reuter

Jeffrey A. Rosen

Adam White

• In-Person Event

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https://fedsoc.org/events/regulatory-theory-preemptive-rule-making-vs-common-law-redress
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What regulatory approach best fosters commercial innovation?  Traditionally, it had been thought that ex post, decentralized approaches that exploit private attorney generals like the common law were best, but many business interests today advocate ex ante, centralized, public sector approaches like federal statutes or federal rulemakings that preempt the common law.  This panel will explore which attributes of regulation best serve innovation: ex ante or ex post? Decentralized or centralized? Public sector or private sector?

This panel was presented during the Fourth Annual Executive Branch Review Conference on May 17, 2016, at the Mayflower Hotel in Washington, DC.

Featuring:

• Prof. Brian T. Fitzpatrick, Professor of Law, Vanderbilt University Law School
• Prof. Brian Galle, Georgetown University Law Center
• Prof. Michael S. Greve, Professor of Law, Antonin Scalia Law School, George Mason University
• Mr. Adam Thierer, Senior Research Fellow, Mercatus Center, George Mason University
• Moderator: Hon. Rachel Brand, Chairman, Litigation Practice Group

Speakers

Rachel L. Brand

Brian T. Fitzpatrick

Brian Galle

Michael S. Greve

Adam Thierer

• In-Person Event

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https://fedsoc.org/events/who-wins-at-administrative-hopscotch
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Overlapping jurisdiction of federal regulatory agencies can lead to confusion and sometimes even contradictory requirements for private actors, and turf battles among agencies.  Further, questions arise about the legitimacy of regulations promulgated by an agency that does not appear to have primary responsibility for an area, when the agency that has that primary responsibility has failed or declined to act.  

Among the myriad items in the 2016 omnibus appropriations bill were two curious provisions: a prohibition on the Internal Revenue Service from spending funds to write new regulations governing 501(c)(4) social welfare organizations, and a prohibition on the Securities and Exchange Commission from spending funds to write regulations that would require companies to report political contributions and donations to tax exempt organizations. Both edicts are responses to intense advocacy for these agencies to undertake the respective rulemakings, following refusal by the Federal Election Commission to expand disclosure.  Moreover, advocates of campaign finance regulation continue to seek new political regulations at the Federal Communications Commission and for the Department of Justice to undertake broader inquiries. As a whole, one might call these efforts “administrative hopscotch”—seeking regulation or enforcement from an agency when another with unequivocal jurisdiction refuses to act.  Is expanding the jurisdictions of federal agencies to such extent that they may regulate the same activity a constitutional problem? Practically speaking, what does this mean for innovators when they must comply with repetitive or diverse red tape? Furthermore, what happens when the regulations conflict, as already seen between certain IRS and FEC provisions?

Ideally, this panel would feature former commissioners from executive agencies who have faced these efforts. They could briefly discuss what they considered the appropriate regulatory purview of their agency, their thoughts on administrative overlap, and whether or not administrative hopscotch is a real problem. The FEC circumvention is ongoing and intense, with media scrutiny and support of hopscotch by its more active commissioners. However, it is likely there are many examples that would make for good discussion and an important panel.

This panel was presented during the Fourth Annual Executive Branch Review Conference on May 17, 2016, at the Mayflower Hotel in Washington, DC.

Featuring:

• Hon. Paul S. Atkins, Patomak Global Partners and former Commissioner, Securities and Exchange Commission
• Hon. Ronald A. Cass, Cass & Associates and former Commissioner and Vice-Chairman, US International Trade Commission
• Hon. Bradley A. Smith, Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law, Capital University Law School and former Commissioner, Federal Election Commission
• Moderator: Hon. Laurence H. Silberman, U.S. Court of Appeals, D.C. Circuit

Speakers

Paul S. Atkins

Ronald A. Cass

Laurence H. Silberman

Bradley A. Smith

• In-Person Event

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https://fedsoc.org/events/address-by-senator-deb-fischer
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United States Senator Deb Fischer of Nebraska delivered this address at the Fourth Annual Executive Branch Review Conference on May 17, 2016.

Featuring:

• Hon. Deb Fischer, United States Senate, Nebraska
• Intoduction: Hon. Maureen Ohlhausen, Commissioner, Federal Trade Commission
• Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

Speakers

Deb Fischer

Maureen K. Ohlhausen

Dean Reuter

• In-Person Event

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https://fedsoc.org/events/regulatory-barriers-to-innovation
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American technological innovation has given birth to entire new segments of economic activity. The sharing economy alone has given rise to a new class of entrepreneurs, where web platforms enable companies like AirBnB and Uber to allow the peer-to-peer sharing of houses, cars ... even lawn mowers. Connectivity and big data is driving the Internet of Things revolution, where ideas once only seen in science fiction movies (think self-driving cars) may soon become an everyday reality. And all of these innovations have been made possible thanks to the Internet, which, until recently, has benefitted from a light regulatory touch.

Unfortunately, federal and state agencies have not always welcomed innovation and disruption, even when it enhances overall consumer welfare. What can be done to embrace innovation and American leadership? What role should the state and federal governments play as new economies continue to take shape? What role should the FTC play? How will the FCC's current Net Neutrality rules impact growth? These and other issues will be explored.

This panel was presented during the Fourth Annual Executive Branch Review Conference on May 17, 2016, at the Mayflower Hotel in Washington, DC.

Featuring:

• Mr. Krishna Juvvadi, Senior Counsel, Uber Technologies, Inc.
• Mr. Clark Neily, Senior Attorney, Institute for Justice
• Prof. John O'Neill, Director, School of Hospitality Management, Penn State
• Mr. Peter Pitsch, Associate General Counsel and Executive Director of Communications Policy, Intel Corporation
• Moderator: Hon. Maureen Ohlhausen, Commissioner, Federal Trade Commission

Speakers

Krishna Juvvadi

Clark Neily

John O'Neill

Maureen K. Ohlhausen

Peter Pitsch

• In-Person Event

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https://fedsoc.org/events/are-patents-under-attack-in-the-supreme-court
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As Congress debates controversial patent legislation that some say will undermine patent rights, has the U.S. Supreme Court been steadily eroding the scope and enforceability of patents for the past decade?  The Supreme Court has made it easier to invalidate patents because an invention is “obvious,” not specific enough, or an “abstract idea.”   The Court has also made it more difficult for patent owners to stop or “enjoin” ongoing infringement of their rights and riskier to assert their rights in court. Is the Supreme Court striking the right balance or is it undermining an important property right?

This panel was presented during the Fourth Annual Executive Branch Review Conference on May 17, 2016, at the Mayflower Hotel in Washington, DC.

Featuring:

• Prof. John F. Duffy, Samuel H. McCoy II Professor of Law, University of Virginia School of Law
• Mr. Michael R. Huston, Gibson, Dunn & Crutcher
• Prof. Adam Mossoff, Professor of Law and Co-Director of Academic Programs and Senior Scholar, Center for the Protection of Intellectual Property, Antonin Scalia Law School, George Mason University
• Mr. Jeff Wall, Sullivan & Cromwell
• Moderator: Hon. Randall R. Rader, The George Washington University

Speakers

John F. Duffy

Michael Huston

Adam Mossoff

Randall R. Rader

J. Troy Wall

• In-Person Event

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https://fedsoc.org/events/disparate-impact-reducing-innovation-in-the-workplace
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The slogan "Personnel is policy" reflects the principle that hiring the right people is one of the most important things that employers do. An employer with an innovative approach to bringing on board the best people has a critical edge over her competition. But the rise of interpretations of federal employment law that basically give the Equal Employment Opportunity Commission ("EEOC") veto power over nearly any employment decision means that many creative ideas about hiring will be stillborn. Notably, the EEOC interprets federal civil rights law not just to prohibit employers from discriminating on the basis of race, sex, color, national origin, and age, but also on practices that have a "disparate impact" on members of such groups even if the practice is not actually discriminatory.  Because virtually any job qualification has a disparate impact on members of some such group, this interpretation confers extraordinary powers on the EEOC. Disparate impact is widely believed to have led many employers to abandon paper and pencil tests of cognitive ability. More recently, employers have been discouraged from using the Internet to recruit because racial minorities were thought to lack access to the internet relative to members of other racial and ethnic groups. Further, the EEOC also has put pressure on employers to abandon the use of credit and criminal background checks because of their alleged disparate impact on  racial minorities. This panel will discuss how the metastasis of disparate impact has strangled innovative hiring strategies in these areas as well as others and other perverse consequences of disparate impact's growth.

This panel was presented during the Fourth Annual Executive Branch Review Conference on May 17, 2016, at the Mayflower Hotel in Washington, DC.

Featuring:

• Hon. Gail Heriot, United States Commission on Civil Rights, and Professor of Law, University of San Diego School of Law
• Mr. James Scanlan, Attorney at Law
• Mr. James Sharf, Sharf & Associates
• Moderator: Mr. John Irving, Of Counsel, Kirkland & Ellis

Speakers

Gail L. Heriot

John S. Irving

James Scanlan

James Sharf

• In-Person Event

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https://fedsoc.org/events/address-by-senator-dan-sullivan
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United States Senator Dan Sullivan of Alaska delivered this address during the Fourth Annual Executive Branch Review Conference on May 17, 2016.

Featuring:

• Hon. Dan Sullivan, United States Senate, Alaska
• Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

Speakers

Dean Reuter

Dan Sullivan

• In-Person Event