Today The Hill published my op-ed, “The FCC, Still Lawless.” The piece is all about the FCC’s abuse of its enforcement powers by imposing fines and penalties without first adopting and publishing knowable, predictable rules. The agency can’t expect those it regulates to be mind readers. When it does so, it violates well-established rule of law norms.
Here are the first four paragraphs. I hope you will read the entire piece:
On the second day of this now nearly gone year, I published an essay, "A Question for 2015: Is the FCC Unlawful?" In it, I stated that "there are reasons why this year will be a propitious time to examine – even more intensely than in the past – the FCC and its actions through just such a lawfulness frame of reference."
Sadly, upon examination, the tendencies of the Obama administration's Federal Communications Commission (FCC) to exercise power in a lawless manner have become more manifest as the year has progressed.
The long and short of it is that, this year, the agency increasingly has arrogated to itself the power to impose sanctions upon those it regulates for actions the regulated parties could not have known in advance to be unlawful. This conduct ignores fundamental rule of law and due process norms because the agency is asserting authority to penalize regulated parties without adopting, in advance, knowable, predictable rules.
These rule of law norms weren't invented yesterday. Indeed, it is especially useful to recall this year – the 800th anniversary of Magna Carta – that our Constitution's conception of "due process of law" is generally acknowledged to be an inheritance from the Great Charter.
Vincent J. Vitkowsky's 2007 ILSA Journal of International and Comparative Law paper addressing the use of force against terrorists under customary international law offers an analytical framework that remains timely and relevant to the international response to the ISIS attacks on Paris:
State practice and patterns of cooperation over the last forty-five years have led to the development of rules of customary international law governing the use of force, in anticipatory self-defense, against terrorists and rogue state collaborators. Although the earlier general rules may have prohibited states from using force except in anticipation of an imminent attack, in more recent practice, the imminence standard has changed. States have initiated and cooperated in the use of force to extend self-defense to instances in which the possibility of an attack is not imminent, but merely expected.
The Employee Retirement Income Security Act of 1974 (ERISA), requires pension plan fiduciaries to make investments to maximize the return and value to the plan’s beneficiaries. In 1994, in its Interpretive Bulletin 94-1, DOL said fiduciaries would not be violating their obligations if they take into account factors other than maximizing return and value, such as “socially responsible investing, sustainable and responsible investing, environmental, social and governance (ESG) investing, impact investing, and economically targeted investing (ETI).”
In October 2008, in its Interpretive Bulletin 08-1, DOL withdrew that Interpretation and substituted one that said its “purpose was to clarify that fiduciary consideration of collateral, noneconomic factors in selecting plan investments should be rare and, when considered, should be documented in a manner that demonstrates compliance with ERISA's rigorous fiduciary standards” (underscoring mine). [Read More]
Abraham Lincoln once called the patent system one of the three greatest advances in human history, surpassed only by the discovery of America and the printing press. The United States was the first nation to allow commoners to own patents. Having a patent allowed the Wright brothers (two humble bicycle mechanics from Ohio) to beat Samuel Langley, their government-backed rival, to become the first to fly—and land—a machine heavier than air.
Patents give inventors the right to control how their discoveries are used in exchange for telling the public how they work. This bargain increases knowledge and drives modern economies. Patents are supposed to shield entrepreneurs from having their inventions stolen by powerful competitors, but modern inventors now face a system that has broken its pledge. Rather than addressing the underlying problems, the pending patent reform legislation tilts the system even further against inventors.
As the debate over state and federal control of immigration status and refugees continues, check out Gerald L. Neuman's Columbia Law Review article "The Lost Century of American Immigration Law":
Legal discussions of immigration regulation in the United States rest upon a myth. This pervasive myth asserts that the borders of the United States were legally open until the enactment of federal immigration legislation in the 1870s and 1880s.
In some ways, this is a pleasant myth, and it seems ungracious to contradict it. The myth reinforces the identification of the United States as a nation of immigrants and provides a historical basis for criticizing later policies of immigration restriction. Moreover, the myth has a substantial foundation in fact: U.S. legal policy warmly welcomed certain kinds of immigration, and restrictive laws were often poorly enforced. Neither Congress nor the states attempted to impose quantitative limits on immigration.
Nonetheless, the borders were not legally open. Regulation of transborder movement of persons existed, primarily at the state level, but also supplemented by federal legislation. Some of this legislation is immediately recognizable as immigration law, while other legislation is less easily recognized because it applied to citizens of other states as well as foreign immigrants.
Congress is considering reforms to our copyright laws, including some that involve compensation for copyrighted music.
As lawmakers contemplate reforms, it should recall the little known copyright alliance that shaped the Constitution’s Intellectual Property Clause. The alliance between Noah Webster—“The Father of Copyright”—and James Madison—“The Father of the Constitution”—sheds light on the constitutional foundations of copyright. These foundations should never be forgotten, even as Congress confronts novel issues arising from the digital revolution. This is especially so because the American economy loses about $300 billion every year to online theft of intellectual property, including far too much piracy of music.
As we discuss in our new book, The Constitutional Foundations of Intellectual Property—A Natural Rights Perspective, both Webster and Madison held that authors possessed exclusive rights over publishing and sales of original works. They regarded copyright as “literary property,” grounded in a person’s natural right to the fruits of his or her own labor. As Madison wrote in a 1792 essay, “government is instituted to protect property of every sort.” By this reasoning, Webster and Madison succeeded in securing a national system for protecting copyrights. [Read More]
Here's part 2 of the criminal justice point/counterpoint, in which John Malcolm of the Heritage Foundation responds with his differing take. Read part 1 by Bill Otis.
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First, let me say a few words about how I look at this issue, and then I want to say a few words about what the bill doesn’t do. While some supporters of sentencing reform believe we have a “mass incarceration” problem and that we should let people out just for the sake of reducing prison populations, I do not. I think that we should lock up the right kind of offenders for the right length of time. But in saying that, I also recognize that these are tight budgetary times and that we are not likely to embark on a prison expansion program anytime soon. I also acknowledge that federal prisons are overcrowded (state prisons even more so) and that the Bureau of Prison’s budget is eating up a large and expanding portion of DOJ’s budget.
I also don’t believe that federal prisons (or state prisons, for that matter) are crowded with people who have been convicted of simple drug possession, nor, by the way, have I ever heard any supporter of sentencing reform say that. The drug offenders who are in prison for the most part are there for drug dealing, sometimes in significant quantities. That having been said, approximately half of the offenders in federal prison are there for drug-related offenses, and, according to the Sentencing Commission, a quarter of those are low level offenders, many of whom received mandatory minimum sentences. [Read More]
Read Bill Otis' remarks from the Federalist Society's event on Capitol Hill last week entitled “Criminal Justice Reform: Sentencing, Mens Rea, and the Path Going Forward.” Read part 2 of this series by John Malcolm.
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My purpose today is not principally to examine the details of the SRCA, something my colleagues on the panel have done admirably for the last 45 minutes. It's to ask you to take a close look at the stated impetus for this bill, the reliability of its factual underpinnings, and its broader but all-but-certain outcroppings.
First, let me suggest a correction to the vocabulary we've been using today. This is not a sentencing "reform" bill. It's a sentencing "reduction" bill. It's revealing that the bill's backers decline to call it by the only name its operative provisions justify. [Read More]
In recent years it seemed to bankers that regulators have been preoccupied with having banks curtail services. Perhaps the latest from the FDIC is a sign that government authorities are once again recognizing why we have banks, the importance of the financial services that people rely upon, and why each generation Federal and State governments take action to facilitate the ability of banks to serve their customers. [Read More]