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Environmental Law & Property Rights

Protecting Property Rights in the Sharing Economy - Podcast

Environmental Law & Property Rights Practice Group Podcast
Grady Gammage, Christina Sandefur July 15, 2016

On June 1, Arizona Governor Doug Ducey signed legislation prohibiting local and municipal governments from banning Internet-based “sharing economy” rental services like Airbnb and VRBO, which connect travelers with short-term vacation rentals. Property rights advocates have applauded the legislation, claiming that cities across the country have been banning private short-term rentals without legitimate justification, turning responsible property owners into outlaws simply because they allow guests to stay in their homes. Opponents assert that allowing commercial sharing-economy hosts to operate what they characterize as “illegal hotels” is unfair to conventional hotel operators who are forced to compete on an uneven playing field, as well as to property owners who may suddenly find their buildings and neighborhoods filled with busy rental properties. Our experts discussed the legislation and broader issues relating to property rights and the sharing economy.

Featuring:

  • Grady Gammage, Jr., Founding Member, Gammage & Burnham PLC
  • Christina Sandefur, Executive Vice President, Goldwater Institute

Taking Private Property? Examining the Patent Review Process - Podcast

Intellectual Property Practice Group Podcast
Gregory Dolin, Camilla Hrdy, David S. Olson, Ben Picozzi July 14, 2016

The 2011 America Invents Act created provisions for Inter Partes Review (“IPR”) and Post Grant Review (“PGR”) of patents. 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 20, 2016, in Cuozzo Speed Technologies v. Lee, the Supreme Court upheld the Patent Trial and Appeal Board's (PTAB) interpretation of two key elements of IPR. The Court held that (1) decisions to institute IPR proceedings are non-appealable, and (2) the PTO has the authority to determine claim meaning and validity under its “broadest reasonable construction” standard.

Important outstanding questions about the constitutionality of IPR and PGR remain, however. Specifically, once the Patent and Trademark Office has granted a patent, does a decision made by an administrative judge within the executive branch to invalidate the patent under IPR/PGR amount to a taking under the 5th Amendment of the U.S. Constitution? Moreover, does such a procedure by which issued patents are reviewed for validity by non-Article III judges raise separation of powers issues?

Professor Greg Dolin participated in the Teleforum to elucidate the argument that he and Irina Manta make in their recent article, Taking Patents, that PGR and IPR decisions invalidating patents do indeed amount to takings under the 5th Amendment. Professor Camilla Hrdy and Yale Information Society Law Project Fellow Ben Picozzi believe that PTAB decisions invalidating patents under IPR and PGR do not raise takings problems. These patent experts also discussed separation of powers issues related to IPR and PGR.

Featuring:

  • Prof. Gregory Dolin, Co-director of the Center for Medicine and Law, University of Baltimore School of Law
  • Prof. Camilla Hrdy, Center for Technology, Innovation & Competition Fellow, University of Pennsylvania Law School
  • Prof. David S. Olson, Associate Professor of Law, Boston College Law School
  • Mr. Ben Picozzi, Student Fellow, Information Society Project, Yale Law School

United States Army Corps of Engineers v. Hawkes Co., Inc. - Post-Decision SCOTUScast

SCOTUScast 7-12-16 featuring Mark Miller
Mark Miller July 12, 2016

On May 31, 2016, the Supreme Court decided United States Army Corps of Engineers v. Hawkes Co., Inc. Hawkes Co. (Hawkes) applied to the Army Corps of Engineers (Corps) for a Clean Water Act permit to begin extracting peat from wetlands in northern Minnesota it was preparing to purchase. After attempting to discourage the purchase, and initiating various administrative processes, the Corps ultimately issued an Approved Jurisdictional Determination (Approved JD) asserting that the wetland contained waters of the United States, thereby creating a substantial barrier to development by Hawkes. Hawkes filed suit in federal district court to challenge the Approved JD, arguing that it conflicted with the U.S. Supreme Court’s interpretation of jurisdiction under the Clean Water Act. The district court dismissed the suit on the grounds that the Approved JD was not a “final agency action” as defined by the Administrative Procedure Act, and therefore not yet subject to judicial review. The U.S. Court of Appeals for the Eighth Circuit reversed that judgment and remanded the case, holding that an Approved JD did constitute final agency action ripe for judicial review.

The question before the Supreme Court was whether the United States Army Corps of Engineers’ determination that the property at issue contains “waters of the United States” protected by the Clean Water Act, constitutes “final agency action for which there is no other adequate remedy in a court," and is therefore subject to judicial review under the Administrative Procedure Act.

By a vote of 8-0, the Supreme Court affirmed the judgment of the Eighth Circuit. Chief Justice Roberts delivered the opinion of the Court, which held that an Approved JD is a final agency action judicially reviewable under the Administrative Procedure Act. The Chief Justice’s majority opinion was joined by Justices Kennedy, Thomas, Breyer, Alito, Sotomayor, and Kagan. Justice Kennedy filed a concurring opinion, in which Justices Thomas and Alito joined. Justice Kagan also filed a concurring opinion. Justice Ginsburg filed an opinion concurring in part and concurring in the judgment.

To discuss the case, we have Mark Miller, who is Managing Attorney, Atlantic Center, Pacific Legal Foundation.

Sturgeon v. Frost - Post-Decision SCOTUScast

SCOTUScast 6-2-16 featuring Gale Norton
Gale Norton June 02, 2016

On March 22, 2016, the Supreme Court decided Sturgeon v. Frost. Sturgeon challenged a National Park Service (NPS) ban on the operation of hovercraft on the National River, part of which falls within the Yukon-Charley River National Preserve. The State of Alaska then intervened, challenging NPS’s authority to require its researchers to obtain a permit before engaging in studies of chum and sockeye salmon on the Alagnak River, part of which falls within the boundaries of the Katmai National Park and Preserve. Sturgeon and Alaska contended that the Alaska National Interest Lands Conservation Act (ANILCA) precludes NPS from regulating activities on state-owned lands and navigable waters that fall within the boundaries of National Park System units in Alaska. The district court ruled in favor of the federal government, and the U.S. Court of Appeals for the Ninth Circuit affirmed that judgment as to Sturgeon but ordered that Alaska’s case be dismissed for lack of standing. The question before the Supreme Court was whether ANILCA prohibits the National Park Service from exercising regulatory control over state, native corporation, and private Alaska land physically located within the boundaries of the National Park System.

By a vote of 8-0, the Supreme Court vacated the judgment of the Ninth Circuit and remanded the case. Chief Justice Roberts delivered the opinion for a unanimous Court, rejecting the Ninth Circuit’s reading of ANILCA. Taken as whole, the Court indicated, ANILCA “contemplates the possibility that all the land within the boundaries of conservation system units in Alaska may be treated differently from federally managed preservation areas across the country, and that ‘non-public’ lands within the boundaries of those units may be treated differently from ‘public’ lands within the unit.”

To discuss the case, we have the Honorable Gale Norton, who served as the 48th U.S. Secretary of the Interior.

WOTUS comes to SCOTUS: U.S. Army Corps of Engineers v. Hawkes Company Decided - Podcast

Environmental Law & Property Rights Practice Group Podcast
Mark Miller May 31, 2016

On Monday, May 31 the United States Supreme Court issued an 8-0 opinion in U.S. Army Corps of Engineers v. Hawkes Company. The U.S. Army Corps of Engineers, and Pacific Legal Foundation, representing Hawkes Company, squared off regarding the Corps’ decision that Hawkes Company could not use its property for peat farming without first spending hundreds of thousands of dollars in pursuit of a federal wetlands permit under the Environmental Protection Agency’s “Waters of the United States” (WOTUS) rule. The Court agreed with Pacific Legal Foundation that that decision, called a Jurisdictional Determination, is judicially reviewable under the Administrative Procedure Act.

Featuring:

  • Mark Miller, Managing Attorney, Atlantic Center, Pacific Legal Foundation