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Legal news. Independent commentary. Federalist Society contributors and independent experts.

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Protecting Property Rights in the Sharing Economy

Christina Sandefur June 24, 2016
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New York lawmakers recently voted to crack down on home-sharing, punishing people who post online advertisements for allowing guests to spend the night in their apartments.

Last month, Arizona Governor Doug Ducey signed a law that stops local governments from turning responsible property owners into outlaws simply because they allow paying guests to stay in their homes. The law, which passed with overwhelming bipartisan support and is the first law of its kind in the country, ensures regulations on home-sharing are limited to true health and safety concerns. [Read More]

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State Court Docket Watch News Clips: 9/21/2015
Photo Credit: "Natural Gas Drilling " by Daniel Foster via Wikimedia Commons (link)

Can a federal agency regulate fracking on federal lands?

Jonathan Wood June 24, 2016
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This week, the District Court of Wyoming held that the answer is “no.” In doing so, the court acknowledged that its role was not to determine “whether hydraulic fracturing [i.e. fracking] is good or bad for the environment” but whether Congress has authorized the agency to regulate. [Read More]

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Patent Claims Teleforum

David S. Olson June 24, 2016
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The 2011 America Invents Act created provisions for Inter Partes Review (“IPR”) and Post Grant Review (“PGR”) of patents in an attempt to resolve patent validity issues without costly litigation. According to PTO statistics, to date, nearly 50,000 patent claims have been challenged under IPR, and nearly 11,000 (22.4%) of those claims have been invalidated. On June 13, 2016, the Patent Trial and Appeal Board (“PTAB”) issued its first two PGR decisions, holding all challenged claims unpatentable subject matter based on Alice, Corp. v. CLS Bank. On June 20, 2016, in Cuozzo Speed Technologies v. Lee, the Supreme Court upheld the PTAB’s interpretation of two key elements of IPR. The Court held that (1) decisions to institute IPR proceedings are non-appealable, and (2) that the PTO has the authority to determine claim meaning and validity under its “broadest reasonable construction” standard. This validation of the PTAB’s IPR procedures and authority, along with the rate of patent invalidation, is making some patent owners feel under siege, while other potential defendants see these results as salutary to the health of innovation and economic activity.

Important outstanding questions about the constitutionality of IPR and PGR, remain, however.  On July 13th at 1:00 p.m. Eastern, the Federalist Society will host a Teleforum call with patent experts who will debate whether invalidations of patents under PGR and IPR qualify as takings under the 5th Amendment of the U.S. Constitution. Our experts will also discuss whether separation of powers problems arise from the fact that the administrative law judges passing on the validity of patents under IPR and PGR are not Article III judges.

Professor Greg Dolin will discuss the argument that he and Professor Irina Manta make in their recent article, Taking Patents. Professor Camilla Hrdy and Ben Picozzi will illuminate the arguments on the other side.

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"Affirmative Action Gone Wild?": Supreme Court Upholds Race Preferences in Fisher v. University of Texas II

Alison Somin June 23, 2016
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I like to think I am unusually gifted at political prognostication because, in 2004, I predicted on my now-defunct personal blog that Barack Obama would be the Democratic presidential nominee in 2008. But today’s Supreme Court Fisher v. Texas II affirmative action decision compels me to be more modest about having any such abilities. Last fall, I wrote that “The bad news for my fellow critics of race-preferential admissions is that I predict… that the Supreme Court will not want to overturn Grutter and hold that student body diversity is not a compelling state interest that justifies racial preferences in admissions. The good news is that… the court will clarify that courts ought to be sufficiently rigorous in doing narrow-tailoring scrutiny that many real-world college affirmative action programs will fail the test.” My first sentence turned out to be right. But despite significant hedging by Justice Anthony Kennedy in his majority opinion, it is far from clear that following Fisher II would lead to the downfall of many real-world race preferential programs. Instead, Justice Alito may well be right to warn in dissent that this is a case of “affirmative action gone wild.” [Read More]

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Supreme Court Columns

Decision Day Update

Timothy Courtney June 23, 2016
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The Supreme Court released 5 more decisions this morning.  Decisions in the other 3 cases still pending from the current term (Whole Woman's Health, Voisine, and McDonnell) are expected to issue next Monday.  Brief summaries of today's opinions follow below: 

(1)  United States v. Texas: Per curiam: The judgment of the U.S. Court of Appeals for the Fifth Circuit is affirmed by an equally divided court. (The nationwide injunction of the 2014 DAPA policy therefore remains in place). [Read More]

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Still, the Court Hears What It Wants to Hear

David L. Applegate June 23, 2016
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In Cuozzo Speed Technologies, LLC, v. Michelle K. Lee, Under Secretary of Commerce for Intellectual Property and Director, Patent and Trademark Office, No. 15-446, I argued on behalf of the Intellectual Property Law Association of Chicago on petition for writ of certiorari that claims in patent cases arising from the Patent Trial and Appeal Board (PTAB) should be construed in the same manner as claims in cases arising from the district courts.  That would, I argued, promote economic efficiency, provide a clear single standard of judicial review, and be consistent with the adjudicatory nature of the PTAB’s new inter partes review (IPR) procedure under the America Invents Act. [Read More]

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Photo Credit: Victoria/DollarPhotoClub (link)

Discussing the D.C. Circuit’s “Open Internet Order” Decision—And What Comes Next

Adam White June 22, 2016
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Last Tuesday, the D.C. Circuit issued its long-awaited decision in U.S. Telecom Association v. FCC, better known as the “net neutrality case.” Myriad petitioners challenge the FCC’s “Open Internet Order,” the agency’s 2015 decision to unilaterally reclassify broadband Internet access services as a “telecommunications service” rather than an “information service,” and thus to regulate broadband Internet as a “common carrier” — that is, much like a 19th century railroad.

The court’s split decision (with Judges Tatel and Srinivasan in the majority, and Judge Williams dissenting) already has spurred no shortage of commentary, including Seth Cooper at this blog, and Aaron Nielson at “Notice and Comment,” the official blog of the Yale Journal on Regulation and the ABA’s Administrative Law Section.

In the same vein, on Friday I had the pleasure of discussing the D.C. Circuit panel's decision with Brett Shumate, on a Federalist Society teleforum. (Brett and I both represented challengers in this case, so it’s safe to say that the discussion was more pleasing than the panel's decision.) The audio is now available on the Federalist Society’s website. Thanks for all the good questions.

* * * * *

Adam J. White is a research fellow with the Hoover Institution. Before joining Hoover, he represented intervenors TechFreedom et al. in this case, as counsel at Boyden Gray & Associates. He continues to be “of counsel” to Boyden Gray & Associates in this litigation.

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Digital Illustration of Network Cable
Photo Credit: hywards/DollarPhotoClub (link)

ICANN in Transition

John M.R. Kneuer June 22, 2016
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Since NTIA announced its acceptance of ICANN's transition plan (see the FedSoc teleforum on the issue) there has been an increase in the predictable volume from those who breathlessly characterize the conclusion of this transition as "the US giving up control of the Internet," or on the other hand, a "bold decision by the Obama administration to preserve Internet freedoms and openness." [Read More]

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A Baker's Dozen Reasons to Oppose Sentencing "Reform" - By William G. Otis

Administrative agencies can’t just “mak[e] it up as [they] go along.”

Raymond J. Nhan, Larry Salzman June 21, 2016
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In late May, Judge James Boasberg of the U.S. Court for the District of Columbia held that the U.S. Department of Agriculture violated the Administrative Procedures Act (APA) because it failed to explain why it ordered a small lumber company pay a tax to fund a private industry marketing program (known as a “check-off order.”) The court concluded that USDA’s determination was arbitrary and capricious because the agency did not show a “rational connection between the facts found and the choice made.” [Read More]

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Separation of Powers, Essential to Liberty, Is Under Attack by John C. Eastman

Speaker Ryan’s proposals for regulatory reform – a better way?

Eileen J. O'Connor June 21, 2016
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Last week, House Speaker Paul Ryan proposed a new regulatory reform plan he calls a “better way” to revive the stalled economy.  It proceeds on the understanding that competition, choice and decentralized decision-making encourage innovation and growth, in contrast to regulation, which often leads to less-productive activities, precaution and maintenance of the status quo. Susan Dudley’s Forbes column elaborates on the value of competition vs. regulation. 

Ryan also calls on agencies to recognize that regulatory costs often hit low income households the hardest. Dudley and Sofie Miller of George Washington University’s Regulatory Studies Center point out the consumer costs of the Department of Energy’s appliance efficiency standards.

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