In an Agencies Roundup post several weeks ago, I revisited the Federal Trade Commission’s (FTC) newly adopted—and not-yet-effective—rule barring the use of noncompete agreements across much of the U.S. economy. It was not my first such post (my ninth, if I’ve counted correctly, and if readers will forgo armchair diagnoses of monomania). The last time around, I noted consolidated challenges to the rule being heard in the U.S. District Court for the Northern District of Texas, where Judge Ada Brown has said that he will issue a decision on the motion for a stay of the rule’s effective date by July 3.

Read the full piece here.

This essay began as a response to claims that the argument that Chevron encourages congressional inaction has been refuted by the best available evidence. That Chevron causes such inaction is one of the arguments made by petitioners in Loper Bright. Leading scholars reject the argument. For instance, Chris Walker has called it one of the “least persuasive points” made at oral argument and Jim Speta has called it “empirically untrue.” Last year, Nicholas Bednar had a very good essay at Notice & Comment arguing that whether Chevron in fact has this effect is an empirical question. He went on to review literature related to (his framing of) this question and concluded by finding that the claim is unsupported and suggesting that its proponents lack candor.

Read the full piece here.

I’ll start with a bit of half-empty, half-full (and very partial) resolution in Federal Trade Commission (FTC) publicity.

Losing by Winning or Just Losing or . . . ?

A couple of weeks ago, the Wall Street Journal editorial board announced that:

“Another Lina Khan Theory Loses in Court”

And that was right, up to a point (leaving aside the question of theory ownership). The FTC had suffered a setback in its antitrust case against Welsh, Carson, Anderson & Stowe and U.S. Anesthesia Partners, in which the agency alleged a “multi-year anticompetitive scheme to consolidate anesthesia practices in Texas, drive up the price of anesthesia services provided to Texas patients, and increase their own profits.”

Read the full piece here.

The sweeping prohibition on noncompete agreements promulgated by the Federal Trade Commision (FTC)—which would nullify 30 million contracts and preempt the laws of 46 states if it takes effect, as scheduled, on Sept. 4—is set for its first judicial test. In Ryan, LLC v. FTC, Judge Ada Brown of the U.S. District Court for the Northern District of Texas has indicated that she expects to rule on the plaintiffs’ motions for a stay of the effective date and for a preliminary injunction by July 3. Expedited proceedings in the U.S. Court of Appeals for the 5^th Circuit, and perhaps the U.S. Supreme Court, are likely to follow.

Read the full piece here.

Ahalf-dozen lawsuits have been filed to date challenging the digital-discrimination rules recently approved by the Federal Communications Commission (FCC). These cases were consolidated earlier this month and will now be heard by the 8th U.S. Circuit Court of Appeals.

Read the full piece here.

Abstract

Standard accounts of why we have administrative agencies do little to account for those agencies’ ability to generate new information that can inform the regulatory process. Even expertise-based understandings of the administrative state limit the role of agencies to gathering information; and prevailing understandings of the administrative state view agencies as engaged in a policy-development exercise checked by theories of political accountability. This is unfortunate, because, for the same reasons that Congress turns to agencies to regulate in complex policy domains, agencies are typically in the best position to generate and make productive use of information that can inform the regulatory process and help Congress to accomplish its intended legislative goals.

This article offers a new account of how we can—and should—think about agencies’ use of information in the regulatory process: regulation as a discovery process. Drawing from economic understandings of how information is produced and used in both regulation and markets, it argues that using the regulatory process to generate information and ensuring that that information is both captured and productively used to improve regulations should be a priority for administrative law. In so doing, it contributes to a growing literature that argues for more experimentation in regulation and offers an account of the administrative state that is divergent from the interest group and presidential administrative models. Specific applications of these ideas are considered. These include how viewing regulation as a discovery process can resolve tensions in the Major Questions Doctrine and the use of an Executive Order to treat regulations as data-generating natural experiments.

When 194 countries meet in May for the annual World Health Assembly, the World Health Organization (WHO) intends to push health ministers to sign a pandemic treaty. Granting the WHO this power risks spurring a new pandemic.

The WHO got a lot of policies wrong on COVID, many of which would effectively be codified in the new treaty. The agency pushed lockdowns and vaccine and mask mandates and promised vaccines would prevent transmission. It consistently failed to show interest in key issues like COVID’s origin or how Sweden achieved such remarkable outcomes — notably half the U.S. death rate — without these draconian measures. And it foolishly believed China would be transparent with its data and control the virus.

Read the full piece here.

Five months from now, health ministers from the 194 sovereign states recognized by the United Nations (UN) will meet in Geneva to discuss and possibly agree to amendments to the International Health Regulations (IHRs), which are intended to “prevent, protect against, prepare, control and provide a public health response to the international spread of diseases.” Ministers will also be asked to approve the text of a new World Health Organization (WHO) convention to combat future pandemics.

While there is a need to coordinate the detection of and response to potential pandemics, it is not clear what role, if any, the WHO should have. Perhaps more importantly, it is uncertain what policies should be put in place (and by whom) to prevent, limit, and respond to any future pandemic. The U.S. government should encourage the WHO to delay both changes to the IHRs and the introduction of a new treaty until several issues are satisfactorily resolved.

Read the full piece here.