Free Lunch Podcast Episode 24 – The Commenting Power: Agency Accountability through Public Participation

Did you know that you have a say in the U.S. government’s regulatory process?

The Administrative Procedure Act (APA) requires that most regulations promulgated by administrative agencies go through a process called “notice and comment rulemaking.” Stripped to its basics, that means that the agency must give notice of a proposed rulemaking and then give the public a chance to comment.  The law allows ordinary citizens, as much as sophisticated interest groups, opportunities to participate in, and have opinions heard on, the development of regulations…

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Free Lunch Podcast Episode 23 – Regulatory Scorecard: A Conversation with Administrator Neomi Rao

In 2017, the U.S. experienced a dramatic shift in regulatory policy at the federal level.  This shift is attributable to a new presidential administration that has made regulatory reform a priority. This priority is evidenced by numerous regulatory initiatives including Executive Order 13771 that directs agencies, among other things, to repeal two regulations for every new regulation promulgated. The Administration recently reported that it had far exceeded this goal by instead, repealing twenty-two regulations for every new regulation created. However, debate remains over how the new administration’s regulatory efforts, in its totality, should be scored thus far. We are pleased to have OIRA Administrator Neomi Rao as our Free Lunch podcast guest to share her perspective on that question.

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Free Lunch Podcast Episode 22 – En Banc D.C. Circuit Upholds CFPB Constitutionality

On Wednesday, January 31, the full United States Court of Appeals for the District of Columbia Circuit voted 7-3 to uphold the Consumer Financial Protection Bureau (CFPB) against a separation-of-powers challenge to its uniquely independent structure. The court’s majority opinion and the various concurring and dissenting opinions total 250 pages, and all were written in the shadow of the Supreme Court, which could soon be called on to clarify the constitutional law of independent agencies. Ambassador C. Boyden Gray and Boyden Gray & Associates Partner Adam Gustafson will deliver an update on the case and discuss whether it is likely to reach the Supreme Court of the United States…

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Free Lunch Podcast Episode 21 – Fintech and Federal Alternatives to State Money Transmission Licensing

Today’s money transmitters are Internet businesses. The money is digital, it might even be cryptocurrency. The business can have customers in every state and nation from day one. The services are diverse and innovative from instant payments between a ridesharing driver and a passenger to custody and exchange of dollars for bitcoin. Western Union’s new contemporaries aren’t just Paypal and Venmo; today they are also Google, Amazon and Coinbase.

And yet, money transmitters must still go regulator to regulator, explain their business, and become licensed in 53 states and territories under statutes that were originally drafted to keep check-cashers honest. Some argue that a federal alternative to that regulatory structure needs to be developed if the US is to stay competitive in financial technologies.

Peter Van Valkenburgh will discuss these issues and Coin Center’s new discussion paper that explores how this federal structure could be developed.

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Free Lunch Podcast Episode 20 – Shining a Light on Regulatory Dark Matter: Regulating Through Guidance

For many years, concerns have been raised that the development and use of guidance documents by agencies should be better managed and more transparent and accountable. There also has been growing concern that, in some cases, guidance documents are being used in lieu of regulations to practically bind regulated parties, without observing the procedural safeguards required of regulations. Paul Noe will discuss how, ten years ago, these concerns had led the White House Office of Management and Budget to issue a government-wide “Bulletin for Agency Good Guidance Practices” during the Administration of President George W. Bush. He also will discuss past shortcomings in the implementation of the OMB Bulletin and offer suggestions on how more could be done to promote good guidance practices across the government.  In addition, Stephen Cox will discuss how these concerns are being addressed by the current Department of Justice.  For example, in November, the Attorney General issued a department-wide memorandum entitled, “Prohibition on Improper Guidance Documents,” and, in December, announced the rescission of twenty-five guidance documents that were unnecessary, inconsistent with existing law, or otherwise improper…

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Free Lunch Podcast Episode 19 – The 2017 Mercatus Report: The Implications of Regulating Over the Long-Term

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…

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Free Lunch Podcast Episode 18 – Does the Migratory Bird Treaty Act Prohibit Incidental or Accidental Killing?

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.  In this episode of Free Lunch, learn 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…

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Free Lunch Podcast Episode 17 – Regulatory Hurdles for Entrepreneurs: The Story of Project Belle

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…

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Free Lunch Podcast Episode 16 – Off-Label Promotion and Free Speech in Medicine

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…

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Free Lunch Podcast Episode 15 – Is the Newest Part of the Copyright Act Antiquated?

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?

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