In a highly influential 1936 essay, “The Unanticipated Consequences of Purposive Social Action,” sociologist Robert K. Merton explained that there were five sources of unintended consequences. One is the “imperious immediacy of interest:” someone wants the intended consequences of an action so badly that they consciously ignore any unintended effects. One can find many examples of this in government regulation. In fact, the Securities and Exchange Commission (SEC) provided an ideal illustration recently with its final rule that requires each listed company to express, in a ratio, how its workforce’s median pay compares with its CEO’s compensation. Continue reading
Officials at the U.S. Department of Agriculture and the U.S. Department of Health and Human Services are currently finalizing the 2015 Dietary Guidelines for Americans (DGA). Those agencies will rely quite heavily on the Scientific Report of a USDA/HHS advisory panel—the Dietary Guidelines Advisory Committee (DGAC)—that Washington Legal Foundation and many other interested parties have criticized as driven more by ideology than sound science. The USDA and HHS Secretaries recently assured the public that the DGA will provide “nutritional and dietary information … based on a preponderance of the evidence.” One test of the Secretaries’ fidelity to that statutorily-mandated criterion will be whether the Dietary Guidelines embrace the Scientific Report’s thoroughly unscientific conclusions on caffeine. Continue reading
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Michael J. Lotito, Littler Mendelson LLP & Gregory P. Jacob, O’Melveny & Myers LLP
Federal administrative agencies, through rule changes, policy statements, and enforcement actions, have taken aim at the traditional employer-employee relationship, unsettling decades of employment law in the process. Many state workplace regulators have taken similar actions, and class-action lawsuits alleging, among other things, improper worker classification have proliferated. Our speakers explain how these disparate actions are converging to impact independent contracting, franchising, and other long-standing employment practices, and what affected enterprises can do to fight back.
In a victory for pseudo-science and a loss for the First Amendment, federal judge Edward Chen recently upheld a regulation by the City of Berkeley compelling retailers to warn customers about the supposed risks of wireless radiation. CTIA-The Wireless Ass’n v. The City of Berkeley.
The ordinance requires that cell phone retailers inform customers of the following:
To assure safety, the Federal Government requires that cell phones meet radio frequency (RF) exposure guidelines.
The statement misleadingly suggests that the federal government has singled out cell phones for safety concerns. This is not the case. The FCC’s guidelines on RF exposure (including these in 2013 and these in 2003) apply to a wide range of devices, not just cell phones. Nor has it been shown that in the absence of FCC regulations, cell phones would be unsafe. The FCC, which takes safety very seriously, has never concluded anything of the sort. Continue reading
Richard O. Faulk, Hollingsworth LLP*
“It is emphatically the province and duty of the Judicial Department to say what the law is.”
Marbury v. Madison, 5 U.S. 137, 177-78 (1803) (per Marshall, C.J.)
Judicial deference to agency interpretations of statutes and regulations is nothing new—but a trend toward more critical review is emerging. In the October 2014 term of the United States Supreme Court alone, three serious concerns about deferential review were recognized:
- First, in King v. Burwell, the Court refused to defer to the Internal Revenue Service’s interpretations of the Affordable Care Act—because Congress did not expressly delegate interpretive power regarding this question of “deep economic and political significance” to the IRS, and because the IRS has no special competence in health care issues.
- Second, in Perez v. Mortgage Bankers Ass’n, members of the Court expressed grave concerns about deference to an agency’s interpretation of vague and ambiguous regulations—especially when the agency itself was responsible for the ambiguities.
- Finally, Justice Thomas wrote a compelling concurring opinion in Michigan v. EPA, in which he stressed that the Court’s continued allegiance to “Chevron deference”—under which courts defer to agencies’ interpretations of the statutes they are charged to administer—raises “serious” constitutional questions under the “separation of powers” doctrine.
Washington Legal Foundation today named Jay B. Stephens as Chairman of its Legal Policy Advisory Board. Mr. Stephens succeeds The Honorable Dick Thornburgh, who served as Chairman for 18 years. WLF’s Legal Policy Advisory Board includes over forty distinguished professionals from the government, private sector, academic, and public policy legal communities.
Mr. Stephens recently retired from Raytheon Company after serving for nearly 13 years as a member of the company’s senior leadership team. As Senior Vice President, General Counsel, and Corporate Secretary at Raytheon, he led the company’s corporate governance, risk management, and global compliance and ethics programs as well as its legal function, and participated in the company’s operational management and strategic planning.
Prior to joining Raytheon, Mr. Stephens had a distinguished career in the public and private sectors, serving as Associate Attorney General of the United States (2001-2002); United States Attorney for the District of Columbia (1988-1993); Deputy Counsel to the President of the United States (1986-1988); Deputy General Counsel of Honeywell International; and as a partner in the Washington office of a national law firm. In 2014, National Law Journal named him among the top fifty general counsel in America, and in 2015 the New York Stock Exchange Governance Services honored him with its Lifetime Achievement award.
Constance Larcher, WLF’s President and CEO, praised Governor Thornburgh for his nearly two decades of leadership of WLF’s Legal Policy Advisory Board:
We deeply appreciate Dick’s humble guidance, extensive involvement in WLF’s litigation, publishing, and communications programs, and devoted friendship. WLF is honored to have Jay Stephens as Dick’s successor, and we look forward to his direction of the Board and his engagement in WLF’s public-interest mission.
Mr. Stephens noted,
I am delighted to have the opportunity to work with the talented and dedicated team at WLF and to provide leadership to its very capable Advisory Board as together we advance the important public interest mission of WLF. I look forward to building on Dick Thornburgh’s many significant contributions to the success of the Foundation’s mission of being an advocate for freedom, justice, and free enterprise.
Andrea Agathoklis Murino, Goodwin Proctor LLP
One need only check the headlines to see that enforcement of the antitrust laws is alive and well at the Federal Trade Commission (“FTC”) today. On both the merger and conduct front, the FTC’s Bureau of Competition has proven incredibly active—and successful. In a continuing example of its willingness to use all tools in its competition enforcement arsenal, the FTC resurrected use of its disgorgement authority in dramatic fashion, collecting nearly $27 million from Cardinal Health, Inc. (“Cardinal”) for conduct dating back to the early and mid- 2000s. The FTC’s willingness to challenge Cardinal’s conduct and the significance of the fine serve as reminders that the agency’s powers are broad and that under Chairwoman Edith Ramirez, the FTC will not hesitate to seek bold relief. Continue reading