Guest Post

  • July 24, 2017
    Guest Post

    by Daniel Farber, Sho Sato Professor of Law & Co-Faculty Director, Center For Law, Energy & The Environment, University of California, Berkeley

    *This is part of ACSblog's Symposium on Regulatory Rollback

    While public attention has been focused on health care legislation, immigration and the Russia scandal, a lot has been happening under the radar in Washington. In numerous government agencies, Trump appointees are working to reverse years of effort by the Obama Administration.

    The EPA is headed by Scott Pruitt, who made his name as Oklahoma Attorney General with a series of lawsuits against the agency. The LA Times calls him “Trump’s most dangerous and adroit hatchetman.” The NY Times reported that Pruitt “has moved to undo, delay or otherwise block more than 30 environmental rules, a regulatory rollback larger in scope than any other over so short a time in the agency’s 47-year history....” The title of the NY Times story was revealing: “Counseled by Industry, Not Staff, E.P.A. Chief is Off to a Blazing Start.” One of his great triumphs was successfully lobbying President Trump to withdraw from the Paris Agreement on climate change.

  • July 24, 2017
    Guest Post

    by Charlotte Garden, associate professor at Seattle University School of Law

    *This is part of ACSblog's Symposium on Regulatory Rollback

    With key National Labor Relations Board and Department of Labor appointments nearing confirmation votes, the Trump administration’s labor policy will soon be in full swing. There is little doubt that that policy will involve some 180-degree reversals from the generally pro-worker positions of the Obama NLRB and DOL, and other more incremental retreats from Obama-era policies. This post discusses a few deregulatory changes that are likely to take effect over the next several months or years, and what they will mean for workers.

    The Department of Labor

    Under Tom Perez’s leadership, the Obama Department of Labor enacted a series of new rules designed to improve workers’ lives. Key among them was a rule that doubled the threshold below which employers would have to pay overtime to white-collar workers to $47,500. In addition to that signature achievement, other important Obama DOL rulemakings would have forced employers to disclose more of their spending on anti-union “persuaders,” and halved the permissible level of silica dust (which is linked to cancer and other lung diseases) to which construction workers can be exposed. The first two of these rules were enjoined before they could take effect; litigation regarding the last is pending in the D.C. Circuit.

  • July 24, 2017
    Guest Post

    by Gigi B. Sohn*, Fellow, Georgetown Law Institute for Tech & Society, Open Society Foundations and Mozilla and Kevin Werbach, Associate Professor of Legal Studies & Business Ethics, The Wharton School, University of Pennsylvania

    *Sohn previously served as Counselor to FCC Chairman Tom Wheeler from Nov. 2013 - Dec. 2016. 

    **This post is part of ACSblog’s Symposium on Regulatory Rollback

    The Open Internet (or “net neutrality”) rules adopted by the Federal Communications Commission (FCC) in 2015 were the Obama administration’s most significant achievement in communications regulation. They were among the first rules the Trump administration targeted following the 2016 election. In May, the Trump FCC began a rulemaking proceeding to repeal them. It also rejected the legal authority in which the rules are grounded, and failed to recommend anything in their place.

    The Open Internet rules prohibit broadband Internet Service Providers (“ISPs) like Comcast, AT&T, Verizon, and Charter, from discriminating against or favoring any content, applications or services on the Internet. Among other things, the rules specifically prohibit ISPs from blocking or throttling, and prohibit ISPs from extracting fees in exchange for faster or better quality delivery to the consumer (“paid prioritization”).

  • July 21, 2017
    Guest Post

    by Steve Vladeck, Professor of Law, University of Texas School of Law

    The front page of Friday’s Washington Post includes a story about the Trump Administration quietly investigating ways of firing Special Counsel Robert S. Mueller III or otherwise shutting down his ongoing (and apparently widening) investigation into Russian tampering in the 2016 presidential election. While there are three possible avenues through which Mueller could legally be removed, which I outline below, it is possible that any or all of these moves could themselves be treated as obstruction of justice, whether by the Special Counsel (if it somehow survives the affair) or Congress in impeachment proceedings. That is to say, even if the President lawfully has the power to fire someone, that doesn’t mean such action is completely unlimited. (For instance, the President could not fire an at-will employee simply because of their race, religion, or sex.)

    And this leads to perhaps the most important bottom line: The complexities of the legal issues aside, what is hopefully clear is that the President has a fair amount of legal authority to act, or to at least attempt to act, in this space—authority that Congress has not meaningfully sought to circumscribe since it enacted the independent counsel statute in 1978. But as the obstruction point underscores, the real question is not whether the President has a legal right to fire Special Counsel Mueller, but whether such a legal move might nevertheless provoke his current supporters in Congress to turn against him—or, at the very least, to more aggressively support other investigations into the current Administration and the Trump campaign.

  • July 14, 2017
    Guest Post

    by Lauren Guth Barnes, partner at Hagens Berman Sobol Shapiro LLP

    It is 775 pages long. I have not read all of it. But I know this: it is a great win for consumers.

    On Monday, July 10, 2017, the Consumer Financial Protection Bureau (CFPB) issued its final rule banning providers of various consumer financial products and services – credit cards and the like – from using arbitration agreements to bar the filing of or participation in a class action. Arbitration is an alternative form of dispute resolution, almost always held in secret, before an individual paid by one or both sides; the parties forego the right to trial by jury and the protections of an independent judicial system, including a neutral judge, the rules of civil procedure and evidence and the transparency of open proceedings. It may work in some settings, between parties of equal bargaining power and when openly agreed to, after a dispute arises. But when buried in the fine print of contracts, often with a clause preventing any kind of group or class action, forced arbitration serves simply to insulate companies from accountability.

    Say your phone company rips you off to the tune of $30. You will likely be angry. You will complain to some friends. You might even spend a little time on the phone, working your way through the company’s customer service and billing bureaucracy. But when you get no relief there, are you going to file a lawsuit over that $30? Or seek arbitration with the company, either by yourself or with the assistance of a lawyer you may have to pay on an hourly basis? The answer, for the vast majority of Americans, is a resounding “no.”

    Companies count on that. They bank on the fact that it is not really worth your time or energy to fight over $30. Or your neighbor’s time. Or the time of the thousands – or maybe millions – of other people they ripped off too. But wow, $30 times thousands or millions of consumers? That is a pretty penny to pocket, all while facing no liability.