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FACULTY DIVISION

Fourth Annual Executive Branch Review Conference

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

The Mayflower Hotel
Washington, DC

Fourth Annual Executive Branch Review Conference

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

The Mayflower Hotel
Washington, DC

Fourth Annual Executive Branch Review Conference

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

The Mayflower Hotel
Washington, DC

Fourth Annual Executive Branch Review Conference

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

The Mayflower Hotel
Washington, DC

Fourth Annual Executive Branch Review Conference

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

The Mayflower Hotel
Washington, DC