Administrative Law & Regulation

Benefit-Cost Analysis and the Courts

Administrative Law & Regulation Practice Group Teleforum Friday, August 11, 01:00 PMFederalist Society Teleforum Conference Call

This call will highlight recent trends in how the courts have considered benefit-cost analysis when reviewing regulations under various statutes. Our experts will also examine the pros and cons of greater judicial review of regulatory analysis and the effect of judicial review on agency behavior. Join us to hear Professor Emily Hammond, Professor of Law at The George Washington University Law School, and Eugene Scalia, Partner at Gibson, Dunn & Crutcher LLP, discuss these important topics.  


  • Emily Hammond, Professor of Law, The George Washington University Law School
  • Eugene Scalia, Partner, Gibson, Dunn & Crutcher LLP

"Bureaucracy in America"

Regulatory Transparency Project Teleforum Thursday, August 10, 12:00 PMFederalist Society Teleforum Conference Call

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?



  • Prof. Joseph Postell, Associate Professor of Political Science at the University of Colorado-Colorado Springs

"Cardiac Arrest: A Cautionary Tale"

Regulatory Transparency Project Teleforum Wednesday, August 02, 12:00 PMFederalist Society Teleforum Conference Call

Howard Root started Vascular Solutions, a medical device company, from scratch. Fifteen years later, his Minnesota company had created over 500 American jobs and developed more than 50 new medical devices that saved and improved lives.

But in 2011, the federal government accused Howard of marketing medical devices for unapproved uses – a practice prohibited by the FDA.  Howard professed his innocence from the beginning but, when prosecutors set their sights on Howard and his company, there was no guarantee that he would save his company from closing or himself from prison.

5 years, 121 attorneys, and $25 million in legal fees later, his life’s work and freedom rested in the hands of 12 strangers in a San Antonio jury room.  Would Howard and his company be vindicated by the verdict, or had he made the biggest mistake of his life by challenging the federal government?



Laws, Regulations, and “Regulatory Dark Matter”

Free Lunch Podcast featuring Wayne Crews
Wayne Crews, Devon Westhill July 20, 2017

Congress passes and the President signs several dozen laws every year. Meanwhile, federal departments and agencies issue well over 3,000 regulations of varying significance. Does Congress have a clear grasp of the amount and cost of the thousands of executive branch and federal agency proclamations and issuances, including guidance documents, memoranda, bulletins, circulars, and letters, that carry practical (if not always technically legally) binding regulatory effect? There are hundreds of “significant” agency guidance documents now in effect, plus many thousands of other such documents that are subject to little democratic accountability. Is the government trading the cost and benefits of informal as well as formal rules?

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LabMD v. FTC: A David Against Goliath Story

Free Lunch Podcast featuring Gus Hurwitz and Michael Daugherty
Justin (Gus) Hurwitz, Michael Daugherty, Devon Westhill July 19, 2017

Mike Daugherty is the CEO of LabMD, a medical testing lab. He has spent most of the last decade defending his company against charges that it had deficient cybersecurity practices. The early years of this battle are recorded in his book, "The Devil Inside the Beltway". In so doing, he has become the only litigant to challenge the basic authority that underlies more than 200 enforcement actions relating to cybersecurity and online privacy that the FTC has brought over the past 15 years. Every one of the 200+ litigants before him – including some of the largest companies in the world – have settled with the FTC, creating an unquestioned and untested belief that the FTC has broad authority to regulate in these areas.

Following oral arguments last month before a panel of the 11th Circuit Court of Appeals, it seems entirely possible that he will prevail. In so doing, he may well topple key pillars of the FTC’s cybersecurity and online privacy edifice.

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  • Michael J. Daugherty, Founder, President and CEO, LabMD

  • Gus Hurwitz, Assistant Professor of Law, Nebraska College of Law