Enforcement & Agency Coercion

Topics

Beyond official rules and regulations, federal agencies sometimes exert influence through unofficial administrative tools. Wielded without the ordinary checks and balances of official actions that lawmakers put in place, these powers can be used to pressure individuals and companies to surrender their rights without due process. What are the real-world examples of agencies using coercive power to affect companies, employees, and consumers and how can these practices be avoided in the future?

Improper Third-Party Payments in U.S. Government Litigation Settlements

February 22, 2021

In this paper, the authors lay out how the United States government negotiated settlements in which settling defendants were forced to pay “donations” to third parties not involved in the cases. The authors go on to argue that this practice – halted in 2017 – was unconstitutional and must remain permanently proscribed.

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Regulating in the Shadows: How Agencies Achieve Indirectly that Which they have No Authority to Achieve Directly

July 5, 2017

When is it appropriate for a government agency to use its powers and force citizens to give up legal rights in order to achieve the agency’s goals? When does this power become overly coercive? The authors of this paper delve into these important questions.

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Deep Dive Episode 200 – Corporate Social Responsibility, Investment Strategy, and Liability Risks

October 13, 2021

A distinguished panel joins us to discuss a new paper that examines the legal implications of the rise of “ESG” investing.

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Deep Dive Episode 196 – Brace Yourself: Discussing The ATF’s Rulemaking On Forearm Stabilizing

September 8, 2021

An expert panel debates a proposed rule that could subject almost all firearms with forearm stabilizing braces to the National Firearms Act of 1934.

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Deep Dive Episode 172 – Third-Party Payments in Government Litigation Settlements

April 21, 2021

Experts debate whether third-party payments in government litigation settlements will – and should – be utilized by the new administration.

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Deep Dive Episode 129 – Environmental Citizen Suits and SEPs: Do Constitutional and Nondelegation Concerns Outweigh Environmental Benefits?

September 2, 2020

Are Supplemental Environmental Projects–citizen suits filed alongside the government’s environmental enforcement actions–an unconstitutional infringement on a core executive function?

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Deep Dive Episode 101 – Litigation Update: Neora v. FTC

April 7, 2020

Neora Co-CEO Deborah Heisz and lead litigation counsel Ed Burbach of Foley & Lardner join us to describe their last four years of interactions with the FTC and the ultimate “fencing in” proposal that lead them to file suit.

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Explainer Episode 4 – Civil Rights and Vanity Plates

September 12, 2019

A USC professor was barred by the California DMV from putting a soccer slogan on his vanity plate; were his free speech rights violated?

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Deep Dive Episode 59 – Cedar Point Nursery v. Shiroma

June 17, 2019

A recent Ninth Circuit decision held that a California regulation allowing labor organizers to spend time on an employer’s property for the purpose of soliciting union membership did not count as a ‘physical taking’ under the 5th Amendment. Wen Fa and Bethany Berger discuss the implications of this decision.

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Deep Dive Episode 54 – Department of Interior Considers Rulemaking on the Right to Use Eagle Feathers in Religious Exercise

May 20, 2019

It is currently a federal crime, under the Bald and Golden Eagle Protection Act, for many Native Americans to possess eagle feathers for religious use. In the 53rd episode of the Fourth Branch podcast series, Joe Davis addressed the proposed rulemaking and its relationship to evolving First Amendment jurisprudence.

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Deep Dive Episode 23 – En Banc D.C. Circuit Upholds CFPB Constitutionality

February 5, 2018

Amb. C. Boyden Gray and Adam Gustafson (Boyden Gray & Associates) discuss the recent en banc decision in PHH v. CFPB, which considers the constitutionality of the CFPB, and whether the case is likely to reach the Supreme Court of the United States.

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Deep Dive Episode 11 – Heimlich Maneuver on Operation Choke Point?

August 25, 2017

Listen to Pete Patterson (Cooper & Kirk) discuss Operation Choke Point, the recent Department of Justice letter denouncing its participation in this initiative, and litigation against federal agencies who have participated in it.

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Deep Dive Episode 8 – Cardiac Arrest: A Cautionary Tale

August 2, 2017

Listen to Howard Root’s story of going from the CEO of Vascular Solutions, Inc. to defending himself and his company in court.

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Deep Dive Episode 3 – SEC Increased Use of Administrative Proceedings and “The $2,200 Man”

June 22, 2017

Michael Kelly (Hogan Lovells) and Eric Wanger (Wanger Investment Management) discuss the SEC’s use of administrative proceedings in this episode of Fourth Branch.

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Corporate Social Responsibility, Investment Strategy, and Liability Risks

October 13, 2021

A distinguished panel joins us to discuss a new paper that examines the legal implications of the rise of “ESG” investing.

Watch this video

Brace Yourself: Discussing The ATF’s Rulemaking On Forearm Stabilizing Braces

September 8, 2021

An expert panel debates a proposed rule that could subject almost all firearms with forearm stabilizing braces to the National Firearms Act of 1934.

Watch this video

Third-Party Payments in Government Litigation Settlements

April 16, 2021

Experts debate whether third-party payments in government litigation settlements will – and should – be utilized by the new administration

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Are Fuel Economy Standards Useful in Lowering Carbon Pollution?

January 25, 2021

Are fuel economy regulations the best tool to reduce pollution? How do they affect consumer behavior, and do they have hidden costs?

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How Does the FDA Regulate Hand Sanitizer?

September 23, 2020

Due to the COVID-19 pandemic, hand sanitizer has been in high demand. The FDA has stringent regulations about the ingredients for hand sanitizer. This guidance was relaxed somewhat to allow more production from a variety of alcohol industries, such as fuel alcohol manufacturers. After these industries invested time and money preparing to produce hand sanitizer, the FDA revoked the initial guidance and dictated that all hand sanitizer must comply with the usual standards. Are the actions of the FDA justified out of a concern for safety, or should some regulations be re-evaluated in times of emergency?

T. Elliot Gaiser is an Associate at Boyden Gray & Associates PLLC.

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SCOTUS Strikes Down Structure of CFPB’s Director Position

John Shu

June 29, 2020

Today, in Seila Law, LLC v. Consumer Financial Protection Bureau, the Supreme Court struck down the CFPB’s leadership structure of a single director with a five-year term, removable only for inefficiency, neglect, or malfeasance, because it violates the separation of powers.

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It Shouldn’t Be Illegal to Wear a T-shirt

Wen Fa

November 5, 2019

It shouldn’t be illegal to wear a t-shirt. Yet several states, including California, Colorado, and Tennessee, have established buffer zones in which political expression is forbidden when it matters the most. On Election Day, voters in these states are forbidden from wearing t-shirts or buttons that ostensibly express political messages. In some states, Americans are even prohibited from displaying political yard signs on their own property if they happen to reside too close to a school or a church that’s being used as a polling place.

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Speech Police at the DMV: Regulation and Arbitrary Rule

Wen Fa

September 19, 2019

Vague laws invite arbitrary power. Laws that require regulators to censor speech they find offensive, for example, give them free rein to make decisions that are arbitrary, biased, and unjust.

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