Recent opinions from the Supreme Court and policy debates within the halls of Washington have placed a renewed focus on the amount of judicial deference administrative agencies receive when interpreting statues. Kent Barnett of the University of Georgia Law School and Christopher Walker of Ohio State’s Moritz College of Law have authored a law review article entitled "Chevron in the Circuit Courts" that empirically examines the effect of so-called Chevron, and its weaker cousin Skidmore, deference on cases heard by the federal intermediate appellate courts. Their article features circuit and agency-specific data on when and where Chevron really matters. Stephen Vaden will moderate a discussion with the papers' authors in a teleforum that should be of interest to both administrative law practitioners and those engaged in the debate over the size and role of the administrative state.
Prof. Kent Barnett, Associate Professor of Law, University of Georgia Law School
Prof. Christopher Walker, Associate Professor of Law, Ohio State University, Michael E. Moritz College of Law
On September 30, the Office of Management and Budget (OMB) proposed a new rule on the nation’s racial categorizations, titled “Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity.” This rule would apply to federal programs throughout the federal government.
Two proposed changes stand out: the first would create a new ethnic group by bringing together people who originated in the North Africa and the Middle East (MENA), and the second would eliminate a question on race for Hispanics, effectively making “Hispanics” their racial identifier. OMB calls this a “limited revision,” but the changes would impact many areas including congressional redistricting and affirmative action programs. Currently Hispanics mark two boxes, an ethnic one for Hispanic, a second one for race. Thus over 50 percent of Hispanics (29 million in the 2010 census) are categorized as white. Since Hispanics account for 75 percent of the growth of whites today, preventing them from being identified as white in government statistics would have real and important effects.
Mr. Roger Clegg, President & General Counsel, Center for Equal Opportunity
Mr. Mike Gonzalez, Senior Fellow, The Heritage Foundation
After years of litigation, the bitterly fought and highly publicized smartphone patent war between two of the biggest players in the industry, Apple and Samsung, finally reached the U.S. Supreme Court. While Apple has already won the patent infringement case, the Supreme Court addressed the complicated question of how to determine damages based on a design patent in a product with thousands of other patents covering it as well. Is the statutory language clear and controlling? Are profits from the entire value of the phone the right measure? Or something less? Do design patents even have any economic value at all in a technically complex product? Is the design of a smartphone more like the design of an entire car, or just a cup holder? Our speakers will discuss the oral argument, their views on the merits of the case, as well as the important policy questions related to the economic value of design patents.
Ms. Rachel W. Apter, Senior Associate, Orrick
Prof. Mark D. Janis, Robert A Lucas Chair of Law; Director, Center for Intellectual Property Research, Maurer School of Law, Indiana University, Election Lawyer Center
On October 6, 2016, the Federal Trade Commission released the long-awaited results of its 6(b) study on patent assertion entities (PAEs). The study provides detailed information about the litigation and licensing activities by the approximately twenty companies the FTC ordered to submit data. The study does more than just describe this data, though. Given that PAEs' function in the innovation industries, the FTC also proposed a number of legislative and judicial recommendations concerning how patents are asserted against alleged infringers. Thus, the FTC's PAE study is an important part of the policy debates about patents, patent licensing, patent litigation, and the impact these have on the innovation economy. In this Teleforum, the panelists discussed the study findings and their reactions to the study and its policy proposals.
Prof. Jorge L. Contreras, Associate Professor, S.J. Quinney College of Law, University of Utah
Prof. Kristen Osenga, Professor of Law, University of Richmond School of Law
Ms. Laurie Self, Vice President and Counsel of Government Affairs, Qualcomm Incorporated
Moderator: Prof. Adam Mossoff, Professor of Law and Co-Director of Academic Programs and Senior Scholar of CPIP, Antonin Scalia Law School, George Mason University
Recent legal developments ranging from Supreme Court decisions to administrative actions have raised significant issues about the balance between religious liberties and prohibitions against discrimination. To what extent must an individual’s right to religious freedom yield to the state’s interest in protecting individuals against discrimination? Does the Free Exercise Clause extend beyond one’s home or church?
The U.S. Commission on Civil Rights recently issued a report that appears to tilt in favor of nondiscrimination over religious liberty. What does this portend for the future of religious liberty?
Hon. Peter N. Kirsanow, ,Commissioner, U.S. Commission on Civil Rights