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Administrative Law

King v. Burwell - Post-Decision SCOTUScast

SCOTUScast 6-26-15 featuring Jonathan Adler and Josh Blackman
Jonathan H. Adler, Josh Blackman June 26, 2015

On June 25, 2015, the Supreme Court issued its decision in King v. Burwell. The question in this highly anticipated case is whether the Affordable Care Act authorizes the Internal Revenue Service to offer tax credit subsidies for individuals purchasing health insurance through federal exchanges.

In an opinion delivered by the Chief Justice, the Court held by a vote of 6-3 that the tax credit subsidies authorized by section 36B of the Affordable Care Act for individuals purchasing health insurance through state exchanges are also available to individuals in states that have a federal exchange.  The judgment of the Fourth Circuit was affirmed.

Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan joined the opinion of the Court. Justice Scalia filed a dissenting opinion which Justices Thomas and Alito joined.

To discuss the case, we have Prof. Josh Blackman, who is an Assistant Professor of Law at the South Texas College of Law and Prof. Jonathan Adler who is the Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation at Case Western Reserve University School of Law.

Administrative "Death Squads" for Patents? Assessing the New Administrative Procedures for Challenging Patents - Podcast

Intellectual Property Practice Group Podcast
Peter Cicala, Gregory Dolin, Robert Sterne, Mark F. Schultz June 17, 2015

Property rights in patented inventions are being struck down at an unprecedented rate in a new administrative forum. This new post-grant review procedure (PGR), instituted in late 2012, takes place not in a court, but rather in an administrative forum known as the Patent Trials and Appeals Board. The Board has invalidated the vast majority of the patent claims it has reviewed, around 80% by some measures.

The US Patent and Trademark Office appears to have erected a vast and expensive system for granting rights with one hand and taking them away with the other. The former Chief Judge of the nation's patent appeals court, Randall Rader, has called the Board a "death squad" for patents. Many businesses and their attorneys have commented that investors and corporate decisionmakers are re-evaluating their investments in R&D whose value is secured by patents.

Are these criticisms confirmed by the actions of opportunistic hedge funds and law firms? PGR challenges have no standing requirement -- they can be instituted by anyone. Hedge fund manager Kyle Bass has filed a PGR challenge against Jazz Pharmaceuticals after shorting the company's stock. PGRs are viewed as so deadly by investors that they reacted just as Bass hoped -- the stock's value plummeted. Similarly, law firms have been contacting innovative companies and demanding payments not to file PGR challenges against their patents.

This Teleform discussed the expansion of the administrative powers of the Patent Office in establishing the Board, and whether this is another example of overreach by the executive branch that should be reined in via reform measures currently under consideration in Congress.

  • Mr. Peter Cicala, Vice President of Intellectual Property, Chief Patent Counsel, Celgene Corporation
  • Prof. Gregory Dolin, Associate Professor of Law, Co-Director, Center for Medicine and Law, University of Baltimore, School of Law
  • Mr. Robert Sterne, Partner, Sterne Kessler Goldstein Fox
  • Moderator: Prof. Mark Schultz, Senior Scholar, Center for the Protection of Intellectual Property, George Mason University School of Law, Associate Professor, Southern Illinois University School of Law

Department of Homeland Security v. MacLean - Post-Decision SCOTUScast

SCOTUScast 5-13-15 featuring Kevin Govern
Kevin H. Govern May 13, 2015

On January 21, 2015, the Supreme Court issued its decision in Department of Homeland Security v. MacLean

The question in this case concerns the Federal Whistleblower Protection Act, which prevents the government from terminating an employee for revealing “any violation of any law, rule, or regulation” or “a substantial and specific danger to public health or safety”--unless that revelation is "specifically prohibited by law."  The question here is whether a federal air marshal’s disclosure that the Transportation Security Administration (TSA) had decided to cut costs by removing air marshals from certain long-distance flights was a disclosure “specifically prohibited by law.”

In an opinion delivered by Chief Justice Roberts, the Court held by a vote of 7-2 that the disclosure in this case was not “specifically prohibited by law.” The judgment of the United States Court of Appeals for the Federal Circuit was affirmed.  The Chief Justice’s opinion was joined by Justices Scalia, Thomas, Ginsburg, Breyer, Alito, and Kagan. Justice Sotomayor issued a dissenting opinion, which was joined by Justice Kennedy.

To discuss the case, we have Kevin Govern, who is an Associate Professor of Law at the Ave Maria School of Law.

Perez v. Mortgage Bankers Association - Post-Decision SCOTUScast

SCOTUScast 5-4-15 featuring Andy Hessick
Frederick "Andy" Hessick May 04, 2015

On March 9, 2015, the Supreme Court issued its decision in Perez v. Mortgage Bankers Association, a case which concerned the Administrative Procedure Act, or APA.  The question was whether the rule announced by the D.C. Circuit in its earlier case Paralyzed Veterans of America v. D.C. Arena L.P. was consistent with the APA.  Under the Paralyzed Veterans rule, an agency must use the APA’s notice-and-comment procedures when it wishes to issue a new interpretation of a regulation that deviates significantly from one the agency has previously adopted.

In an opinion delivered by Justice Sotomayor, the Court held by a vote of 9-0 that the Paralyzed Veterans rule conflicted with the text of the APA and improperly imposed procedural requirements on agencies beyond those authorized by the statute.  The Chief Justice and Justices Kennedy, Ginsburg, Breyer and Kagan joined Justice Sotomayor’s opinion in full, and Justice Alito joined it except for part III-B.  Justice Alito also filed an opinion concurring in part and concurring in the judgment. Justice Scalia and Justice Thomas filed opinions concurring in the judgment. The judgment of the D.C. Circuit was reversed.

To discuss the case, we have Andrew Hessick, who is a Professor of Law at the University of Utah College of Law.

The Environmental Protection Agency’s Waters of the United States Rule - Podcast

Environmental Law & Property Rights Practice Group Podcast
Brent A. Fewell, Patrick A. Parenteau April 22, 2015

The Environmental Protection Agency and the Army Corps of Engineers are currently engaged in a controversial rulemaking to redefine its jurisdiction over bodies of water through a new definition of the “Waters of the United States” under the Clean Water Act. Some have criticized the proposed rule, claiming that it is an overreach that would give the federal government authority over huge areas of private and state land that are rarely even wet, while others have dismissed these concerns as overblown and have pointed out the benefits of clarifying what is currently a murky area of law. Our experts discussed the rulemaking and presented both sides of the argument.

  • Brent A. Fewell, Partner, Troutman Sanders LLP
  • Prof. Patrick A. Parenteau, Senior Counsel, Professor of Law, Vermont Law School