18th Annual Faculty Conference
The FCC derives its legal authority almost entirely from statutes that predate the Internet--primarily from the 1934 Communications Act, which was designed for the regulation of a national telephone monopolist, and the 1996 Telecommunications Act, which was designed to incrementally deregulate the communications industry as the vestiges of that national monopoly gave way to competition. Over the past 20 years, the Internet has become the foundation of the communications industry, playing a role similar to that of the monopoly-provided telecommunications services that the FCC has traditionally regulated. There is unquestionably more competition today than there was in 1934, but perhaps not as much as was hoped in 1996. The FCC’s Open Internet Order, in which the FCC brought Internet Service Providers within the regulatory framework initially created in 1934, presents a compelling example of an agency struggling to find a new role in a changed industry – struggling to imbue old statutes with broad grants of power to govern what the FCC, but perhaps not Congress, believes are issues properly within its ambit. In doing so, the Order thrusts the FCC into current debates about the scope of the administrative state, the potential revival of the major questions doctrine, and the potential demise of Chevron. Framed by these issues, this debate will consider whether the FCC’s Open Internet Order fits within the agency’s statutory authority.
This debate took place during the 18th Annual Faculty Conference at the Sheraton New York Times Square Hotel in New York, NY on January 8, 2016.
Luncheon Debate: Resolved: The FCC does not have the legal authority to implement net neutrality
12:00 pm - 2:00 pm
- Prof. Adam Candeub, Michigan State University School of Law
- Prof. Justin (Gus) Hurwitz, Nebraska College of Law
- Mr. Geoffrey Manne, International Center for Law and Economics
- Prof. James Speta, Northwestern University School of Law
- Moderator: Prof. Daniel Lyons, Boston College Law School
Sheraton New York Times Square Hotel 18th Annual Faculty Conference
New York, NY
When Chevron was first decided it was generally welcomed on the right side of the political spectrum as a principled method constraining judicial discretion and permitting the executive to exert policy control over the administrative state. But as the administrative state continues to grow, some now see Chevron as removing an important check on government power and an abdication of the judiciary’s authority to say what the law is. Some members of the Supreme Court are now open to reconsidering judicial deference to agency action, at least in certain areas, such as determining their own jurisdictions and interpreting their own regulations. The panel will consider the extent to which the new skepticism toward Chevron in particular and judicial deference to agencies in general is justified.
This panel took place during the 18th Annual Faculty Conference at the Sheraton New York Times Square Hotel in New York, NY on January 8, 2016.
- Dean Blake D. Morant, President, Association of American Law Schools & Dean and Robert Kramer Research Professor of Law, George Washington University Law School and
- Dean Kellye Y. Testy, President Elect, Association of American Law Schools & Toni Rembe Dean & Professor of Law, University of Washington School of Law
- Introduction: Hon. Lee Liberman Otis, Senior Vice President & Faculty Division Director, The Federalist Society
Panel: The New Chevron Skeptics
8:45 am - 10:15 am
- Prof. Michael Herz, Yeshiva University Benjamin N. Cardozo School of Law
- Prof. Jeffrey Pojanowski, University of Notre Dame Law School
- Prof. Peter Strauss, Columbia Law School
- Prof. Christopher Walker, The Ohio State University Moritz College of Law
- Moderator: Prof. John McGinnis, Northwestern University School of Law
New York, NY 2015 National Lawyers Convention
January 8, 2016
The Constitution specifically vests power in Congress to grant authors and inventors exclusive rights in their writings and inventions. The first Congress passed laws setting forth the requirements and procedures for granting patents and copyrights. In these early days, copyrights were granted for registered works, and Thomas Jefferson himself examined patents as a member of President George Washington's cabinet. As IP laws developed, however, they gave substantial deference to both the Patent and Trademark Office (PTO), and the Copyright Office, on matters of reviewing, granting, limiting, and defining IP rights. These agencies have come to wield significant influence over the U.S. IP regime. Recently, and notwithstanding its delegations of power, Congress has been particularly active in passing new patent and copyright legislation. Sometimes Congress specifies how the law shall be interpreted and administered, and other times it delegates this to the relevant agencies, or to the courts. By considering specific examples, this panel will examine the role of Congress, Congressional delegation, and executive agencies in crafting and administering our modern intellectual property systems.
Intellectual Property: The Role of Congress and Executive Agencies in 21st Century IP Regimes
11:00 a.m. – 12:30 p.m.
- Prof. Sandra Aistars, Clinical Professor, George Mason School of Law and Sr. Scholar and Director, Copyright Policy & Research, Center for the Protection of Intellectual Property
- Prof. John F. Duffy, Samuel H. McCoy II Professor of Law, University of Virginia School of Law
- Prof. David S. Olson, Associate Professor, Boston College Law School
- Prof. Arti K. Rai, Elvin R. Latty Professor of Law and co-Director, Duke Law Center for Innovation Policy
- Moderator: Hon. Thomas B. Griffith, U.S. Court of Appeals, D.C. Circuit
The Mayflower Hotel 2015 National Lawyers Convention
Environmental law and policy raise profound questions about Congress's role and responsibilities. Many environmental regulatory statutes leave the Environmental Protection Agency with broad discretion. Although these grants of discretion create flexibility and take advantage of EPA expertise, they also invite congressional passivity, create administrative problems, and increase special-interest pressures on the EPA and Congress alike. Congressional-EPA relations matter now more than ever because many major federal environmental laws are now more than 40 years old. The EPA is using currently enabling language from old environmental organic acts to regulate global climate change and other cutting-edge problems. What are the proper relations between Congress and the EPA? If these relations are out of alignment, can Congress realign them and how? Panelists will explore these questions with examples ranging from hydrofracturing through clean water and clean air regulation.
Environmental Law: The Role of Congress in Environmental Law
11:00 a.m. – 12:30 p.m.
- Prof. Eric R. Claeys, Professor of Law, George Mason University School of Law
- Mr. Matt Leggett, Policy Counsel on Energy, Environment, and Agriculture, U.S. Senate Republican Policy Committee
- Prof. Nicholas A. Robinson, University Professor on the Environment, and Kerlin Professor Emeritus, Pace University School of Law
- Prof. David Schoenbrod, Trustee Professor of Law, New York Law School
- Moderator: Hon. Steven M. Colloton, U.S. Court of Appeals, Eighth Circuit
The Mayflower Hotel