- Justin Pearson, Institute for Justice
- Professor Nat Stern, Florida State Law
Policy makers on Capitol Hill are poised to press forward with legislation thatpurports to address what some believe is a litigation crisis, driven by so-called non-practicing entities. Others believe the legislation would ultimately undermine important property rights and patent licensing arrangements. The latter group asserts that a growing body of empirical evidence holds that patent litigation rates have not increased significantly and in fact appear to be on the decline. Will the proposed patent legislation address real litigation abuses, and what effect will it have on legitimate patent holders? Is there a responsible way to address patent litigation abuses without hampering patent-based incentives to invest in innovation? What do the answers to these questions mean for the United States efforts to promote strong IP laws abroad?
This panel was part of a conference titled "Patents and Innovation: Addressing Current Issues". The conference was held on Tuesday, December 2, 2014, at the Mayflower Hotel in Washington, DC.
This panel will explore how judicial deference to agency decisionmaking has evolved since the seminal Supreme Court decision in Chevron v. NRDC and whether it is time to revisit the doctrine of "Chevron deference." The panelists will discuss questions such as whether Chevrondeference has led courts to take such a hands-off approach in litigation against agency action that the agencies have become an unaccountable fourth branch of government. Or is Chevron deference a doctrine that is necessary to keep courts from becoming policymaking bodies? They will discuss the real-world implications of Chevron deference from the perspective of regulated parties and whether there are any practical alternatives to Chevron deference. The panel will also explore related doctrines of judicial deference, such as so-called Auer deference, and whether lower courts have taken that deference beyond what the Supreme Court intended.
The Federalist Society's Litigation Practice Group presented this panel on "Time to Revisit Chevron Deference?" on Thursday, November 13, during the 2014 National Lawyers Convention.
Steven Donziger, a self-styled social activist and Harvard educated lawyer, signed on to a budding class action lawsuit against multinational Texaco (which later merged with Chevron to become the third-largest corporation in America). The suit sought reparations for the Ecuadorian peasants and tribes people whose lives were affected by decades of oil production near their villages and fields. During twenty years of legal hostilities in federal courts in Manhattan and remote provincial tribunals in the Ecuadorian jungle, Mr. Donziger and Chevron’s lawyers followed fierce no-holds-barred rules. Mr. Donziger proved himself adept at influencing the media, Hollywood, and public opinion. He cajoled and coerced Ecuadorian judges on the theory that his noble ends justified any means of persuasion. And in the end, he won a $19 billion judgment against Chevon – the biggest environmental damages award in history. But the company refused to surrender or compromise. Instead, Chevron targeted Mr. Donziger personally, and its counter-attack revealed evidence of his politicking and manipulation of evidence. Suddenly the verdict, and decades of Mr. Donziger’s single-minded pursuit of the case, began to unravel.