Bert W. Rein

Wiley founding partner Bert W. Rein and partner Kevin G. Rupy examine the recent U.S. Supreme Court decision in Barr v. AAPC, which he says could greatly limit the government¹s ability to use speech regulation as a regulatory tool. The immediate impact is only to eliminate the government debt exception to the TCPA’s bar on using robocalls for debt collection purposes, but they believe it may have far greater consequences.

The policymaking power routinely exercised by unelected officials in federal agencies is under pressure from both sides of the ideological spectrum. On the right, libertarians and regulated businesses rail against the “deep state.” On the left, there is concern about a deregulatory Executive Branch’s new and revised statutory interpretations by. Both sides turn to the courts for relief.

The Department of Health and Human Services has proposed a new rule to “require direct-to-consumer (DTC) television advertisements of prescription drugs and biological products for which payment is available through or under Medicare or Medicaid to include the Wholesale Acquisition Cost (WAC, or ‘list price’) of that drug or biological product.”

In a 2017 WLF Legal Opinion Letter offering “Precautions for Commercial-Speech Regulators,” we noted “increasing constitutional sensitivity regarding the value of commercial speech” and we warned “legislators and regulators … [to] think long and hard before using speech restraint or compelled disclosure to pursue their consumption preferences or policy goals.”

“Trial by jury,” wrote Alexis de Tocqueville, “spreads to all classes respect for the thing judged and the idea of right.” Yet the past quarter century has witnessed a remarkable decline in the frequency of public civil jury trials, in favor of alternative methods for settling disputes and compensating victims. Are democratic values being lost through this trend? Do the societal benefits outweigh the costs? Featuring plaintiff’s attorney Steve Susman, alternative dispute resolution expert Kenneth Feinberg, and antitrust and commercial litigator Bert Rein. Moderated by Jeffrey Rosen, president and CEO of the National Constitution Center.