Government Agencies

The Role of Congress and Executive Agencies in 21st Century IP Regimes - Event Audio/Video

2015 National Lawyers Convention
Sandra Aistars, John F. Duffy, David S. Olson, Arti K. Rai, Thomas B. Griffith November 19, 2015

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.
State Room

  • 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
Washington, DC

The Role of Congress in Environmental Law - Event Audio/Video

2015 National Lawyers Convention
Eric R. Claeys, Matt Leggett, Nicholas A. Robinson, David Schoenbrod, Steven Colloton November 19, 2015

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.
East Room

  • 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
Washington, DC

Showcase Panel III: ROUNDTABLE: Can Changes in Incentives Significantly Address Congressional Dysfunction? - Event Audio/Video

2015 National Lawyers Convention
Howard L. Berman, James W. Ceaser, Michael S. Greve, Frances E. Lee, Richard Pildes, Matthew Lee Wiener, Frank H. Easterbrook, Dean A. Reuter November 19, 2015

Over the years, and especially recently, it appears as though members of Congress primarily need to avoid offending constituents if they wish to stay in office. There are few rewards for genuine political leadership or the hard-nosed political deals that are oftentimes crucial to good governance. “Passing the buck" to the Executive branch, usually in the form of the Administrative State or even to the Judiciary seems less effective but more prudent. Are the incentives for members of Congress deleterious to its overall function? Is it possible to effectively change them?

Showcase Panel III: ROUNDTABLE: Can Changes in Incentives Significantly Address Congressional Dysfunction?
9:00 a.m. – 10:45 a.m.
Grand Ballroom

  • Hon. Howard L. Berman, Former U.S. Representative, California’s 28th Congressional District, Senior Advisor, Covington & Burling LLP
  • Prof. James W. Ceaser, Professor of Politics, University of Virginia
  • Prof. Michael S. Greve, Professor of Law, George Mason University School of Law
  • Prof. Frances E. Lee, Professor, University of Maryland
  • Prof. Richard H. Pildes, Sudler Family Professor of Constitutional Law, New York University School of Law
  • Mr. Matthew L. Wiener, Executive Director, Administrative Conference of the United States
  • Moderator: Hon. Frank H. Easterbrook, U.S. Court of Appeals, Seventh Circuit
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

The Mayflower Hotel
Washington, DC

Broadband Re-regulation: The Battle Returns to the Courts - Event Audio/Video

2015 National Lawyers Convention
Earl W. Comstock, Miguel Estrada, Roslyn Layton, David B. Sentelle, Kelly A. Donohue November 18, 2015

Panelists will examine the impact of the FCC's Open Internet Order and reclassification of broadband as a public utility and explore possible alternative regulatory regimes. What will the courts do? What should Congress do? What should a new Administration make its first broadband priorities? ‎With the convergence of technologies, should the current platform-specific regulation be replaced with a more flexible, service-based regulatory scheme? How could such regulations impact developing business models and evolving technologies? How is the US faring against the rest of the world in the quest for broadband leadership?

Telecommunications: Broadband Re-regulation: The Battle Returns to the Courts
3:45 p.m. – 5:15 p.m.
East Room

  • Mr. Earl W. Comstock, Partner, Eckert Seamans Cherin & Mellott, LLC
  • Mr. Miguel A. Estrada, Partner, Gibson, Dunn & Crutcher LLP
  • Ms. Roslyn Layton, Visiting Fellow, American Enterprise Institute
  • Mr. Robert Quinn, Senior Vice-President – Federal Regulatory and Chief Privacy Officer, AT&T
  • Moderator: Hon. David B. Sentelle, U.S. Court of Appeals, D.C. Circuit
  • Introduction: Ms. Kelly A. Donohue, Partner, Wilkinson Barker Knauer LLP

The Mayflower Hotel
Washington, DC

Deference Meets Delegation: Which is the Most Dangerous Branch? - Event Audio/Video

2015 National Lawyers Convention
John C. Eastman, C. Boyden Gray, Neal K. Katyal, David B. Rivkin, Jr., Brett M. Kavanaugh November 18, 2015

Article I, Section 1 of the Constitution provides that “All legislative Powers herein granted shall be vested in a Congress of the United States." Critics argue that, given this mandate, too much of the lawmaking power is exercised by unelected people in unaccountable agencies. These bureaucracies make “law" by both formal and informal regulation, and oftentimes both enforce their own laws and adjudicate their own enforcement actions. Some have even been given self-funding mechanisms, which removes them from even the check of Congress's appropriation power. Proponents of such delegation argue that administrative agency staff have expertise in myriad substantive areas that legislators could never obtain, and that what critics describe as a lack of accountability is actually insulation from political pressure and influence. They assert that delegations of lawmaking power are permissible if Congress provides an “intelligible principle" setting the boundaries within which the agencies are permitted to operate. The Supreme Court has, under this standard, upheld such broad grants of power to the agencies as legislative direction to regulate “in the public interest," for the “public convenience, interest, or necessity," to do what is “just and reasonable," or to prevent “unfair methods of competition." In other words, critics assert, the “intelligible principle" limitation on delegations of lawmaking power is no limitation at all. The last time the Court struck down an act of Congress because it delegated lawmaking power was in the 1935 case of Schechter Poultry Corp. v. United States, and that case involved a double delegation, first to the executive and then to a committee of private businesses.

The phenomenon of agency officials making most of the nation's laws expanded when the Court decided, in Chevron v. Natural Resources Defense Council, (1984) to start deferring to agency interpretation of ambiguous statutes. Several members of the Court have started to question this state of affairs, and this past term, in three separate opinions, Justice Thomas called on the Court to revisit both Chevron deference and the demise of the non-delegation doctrine. Others fear an over-empowered, unelected judiciary. One response to reliance on Chevron deference was offered by Chief Justice Roberts in the King v. Burwell case. There, the Chief (writing for a 5-4 majority) declined to defer to the agency's interpretation of the statute, and instead applied Chevron deference to the Court's own interpretation. This panel will address the present state of affairs and the possible roads forward.

Federalism: Deference Meets Delegation: Which is the Most Dangerous Branch?
3:45 p.m. – 5:15 p.m.
Grand Ballroom

  • Prof. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law
  • Hon. C. Boyden Gray, Boyden Gray & Associates and former U.S. Ambassador to the European Union
  • Mr. Neal K. Katyal, Hogan Lovells and former Acting U.S. Solicitor General
  • Mr. David B. Rivkin, Jr., Partner, BakerHostetler
  • Moderator: Hon. Brett Kavanaugh, U.S. Court of Appeals, D.C. Circuit

The Mayflower Hotel
Washington, DC