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…Listen to this podcast
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…Listen to this podcast
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 According to some critics, this most recent major update to the Copyright Act is one of the most outdated parts of the law.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?Listen to this podcast
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…Listen to this podcast
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. Join us for a discussion of the Wassenaar rules and their regulatory effects.Listen to this podcast
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?Listen to this podcast
On the eleventh episode of the Free Lunch podcast, Greg 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.Listen to this podcast
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. The call will discuss Operation Choke Point, the Department of Justice Letter, and litigation against federal agencies who have participated in Operation Choke Point.Listen to this podcast
In 2011, Congress created a new administrative tribunal in the U.S. Patent Office with the power to cancel previously granted patents, called the Patent Trial and Appeal Board (PTAB). The PTAB was created to provide an efficient and inexpensive administrative process for eliminating low-quality patents – what are called “bad patents.” Despite its laudable purpose, the PTAB has earned a reputation among some as a prime example of regulatory overreach. The PTAB’s critics cite a wide range of concerns including inadequate due process protections and bias against patents. A former federal appellate chief judge even referred to PTAB administrative judges as “patent death squads.” So, is the PTAB indeed harming the property rights that have helped to drive the U.S. innovation economy for over 200 years or, is it functioning as intended? What are the concerns of its detractors? If these concerns are valid, does the PTAB need simple reform or more?
Administrative agencies, and extensive regulation of the economy, have always existed in America. But from the founding to 1900, agencies were constrained by basic principles of representation, separation of powers, and judicial review. In his new book, Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government, Professor Joseph Postell explores American history, from the Revolutionary War to the present, to answer such questions as: What is the administrative state; Is it compatible with the basic principles of American constitutionalism; How have American thinkers and statesmen answered these questions in the past; What has changed since then; and, Do these changes pose a threat to our constitutional system?Listen to this podcast