You’ve probably noticed – or likely soon will – that the latest phase of the more than a decade-long fight over “net neutrality” regulations has begun at the Federal Communications Commission. FCC Chairman Ajit Pai has released the text of a Notice of Proposed Rulemaking that the Commission on which the Commission vote on May 18.
The Commission says its NPRM proposes “to restore the Internet to a light-touch regulatory framework by classifying broadband Internet access service as an information service and by seeking comment on the existing rules governing Internet service providers’ practices.” [Read More]
It is not often that you think of the terms “criminal defense” and “Chevron deference” in the same sentence. But this is starting to change given the ever-expanding number of quasi-civil and criminal statutes passed by Congress.
Indeed, much of the conduct that we would typically consider to be a violation of a regulation, subject to civil penalties in federal court or in an administrative tribunal, is criminalized in the same statute. And it is usually the government’s decision as to whether the case proceeds civilly or with handcuffs. [Read More]
Not since the New Deal era has the scope and reach of the modern administrative state received so much public attention. It is thus unsurprising that the first Supreme Court case mentioned by Senator Diane Feinstein on the first day of Judge Neil Gorsuch’s confirmation hearings did not involve familiar hot-button issues like gun control, abortion, or campaign finance. That case was Chevron USA, Inc. v. National Resources Defense Council, Inc., a 1984 decision associated with a doctrine that requires judges to defer to federal agencies’ interpretations of statutes that they are charged with administering. [Read More]
Recent opinions from the Supreme Court and policy debates within the halls of Washington have placed a renewed focus on the amount of 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 written a draft 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. Administrative law practitioners should keep the article close at hand. [Read More]
In Cuozzo Speed Technologies, LLC, v. Michelle K. Lee, Under Secretary of Commerce for Intellectual Property and Director, Patent and Trademark Office, No. 15-446, I argued on behalf of the Intellectual Property Law Association of Chicago on petition for writ of certiorari that claims in patent cases arising from the Patent Trial and Appeal Board (PTAB) should be construed in the same manner as claims in cases arising from the district courts. That would, I argued, promote economic efficiency, provide a clear single standard of judicial review, and be consistent with the adjudicatory nature of the PTAB’s new inter partes review (IPR) procedure under the America Invents Act. [Read More]