Susan E. Dudley is Director of the George Washington University Regulatory Studies Center, which she founded in 2009, and a distinguished professor of practice in the Trachtenberg School of Public Policy and Public Administration. From 2007 to 2009, she served as the Administrator of the Office of Information and Regulatory Affairs (OIRA) in the U.S. Office of Management and Budget.
WLF Legal Pulse: As promised, Congress and the Administration have quickly gotten to work reconsidering and removing a host of federal regulations while also setting the stage for a much different approach to regulation. Let’s first talk about what Congress is doing.
Professor Dudley: Under the Congressional Review Act of 1996 (CRA), Congress has 60 legislative days after a regulation is published to vote to disapprove it. The procedures for disapproval are streamlined (including requiring a simple majority in the Senate) and if a rule is disapproved, the agency cannot issue something substantially similar. Continue reading
*Michelle Stilwell, the Mary G. Waterman Fellow at WLF, significantly contributed to this post.
In what is poised to become an extremely influential case, the US Court of Appeals for the Federal Circuit is currently deciding what to do after the federal government unlawfully took over the equity and leadership of one of America’s largest private insurance companies, American International Group, Inc. (AIG), during the 2008 financial crisis. The government, in order to prevent AIG from declaring bankruptcy, offered it the customary Federal Reserve Act § 13(3) loan in the extraordinary sum of $85 billion. However, in a virtually unprecedented move, the government conditioned this loan on receiving 80% of AIG’s equity via preferred stock. This was an offer AIG couldn’t refuse, and it effectively diluted AIG’s shares and all but eliminated the voting and equity rights of the existing shareholders. So what did AIG’s shareholders receive in return for the extreme devaluing of their shares? Nothing. Not yet anyway. The lower court below held, in a lawsuit brought by AIG’s largest shareholder at the time, that the government’s action was illegal, but that no damages would be awarded. It is now up to the Federal Circuit to provide justice for AIG’s shareholders—and to make sure that the government has an incentive to obey the law in future financial crises. Continue reading
Featured Expert Contributor – Intellectual Property (Patents)
Jeffri A. Kaminski, Venable LLP
The US Supreme Court will hear arguments on three patent cases in the October 2016 Term. Each case addresses a different area of patent law. In Samsung v. Apple (argument October 11), the Court will address the amount of damages awarded for infringement of a design patent. In SCA Hygiene v. First Quality (argument November 1), the Court will decide if the equitable defense of laches is available in patent cases. Lastly the court will tackle the question of liability for infringement when the product is made in a foreign country and only one component of the infringing product is provided from the U.S. to the foreign country in Life Technologies v. Promega (argument date to be determined). Continue reading
Lesser Prairie Chicken
On July 20, 2016, ten months after a U.S. District Court for the Western District of Texas judge ruled that federal regulators erred in finding the lesser prairie chicken “threatened” under the Endangered Species Act (ESA), the US Fish & Wildlife Service (FWS) finalized its delisting decision. The decision not only validates the work of a public-private bird-conservation partnership, it will also test the viability of such state-based efforts. Continue reading
Featured Expert Column – Environmental Law and Policy
By Samuel B. Boxerman, Sidley Austin LLP with Ben Tannen, Sidley Austin LLP
On May 31, 2016, the US Supreme Court held that a Clean Water Act (CWA) “jurisdictional determination” (JD) was final agency action subject to review under the Administrative Procedure Act (APA) U.S. Army Corps of Engineers v. Hawkes, Co. Hawkes empowers landowners to challenge decisions that the CWA applies to a specific parcel of property immediately after that determination, rather than after an enforcement action or completion of the lengthy and burdensome permitting process. The judgment was unanimous, with seven of eight justices signing on to Chief Justice Roberts’ opinion for the Court; Justice Ginsburg concurred in the judgment.
The underlying dispute involved the CWA’s most controversial provision: Section 404, which prohibits the discharge of pollutants from a point source into “waters of the United States” without a permit.1 Section 404 directs the Army Corps to issue permits authorizing the discharge of dredged or fill material into waters of the United States, including wetlands. Continue reading
In mid-April, Facebook unveiled a new tool to help copyright holders combat infringing behavior. The move comes after digital content creators alleged that Facebook was building its growing video-sharing platform by acquiescing to third parties’ posting of videos originally uploaded elsewhere (known as “freebooting”). Critics of freebooting argue that the practice hurts creators by siphoning off views (and thus ad revenue from them and the original video platform, such as YouTube). The new tool, called Rights Manager, is Facebook’s attempt to end these illegal practices and encourage digital-content creators to bring more of their content to Facebook’s video-sharing platform. Continue reading
Washington Legal Foundation has long supported industry self-help initiatives, including those aimed at protecting intellectual property rights. The WLF Legal Pulse, for instance, has highlighted industry efforts to self-police copyright infringement and reduce frivolous patent litigation (for example, here and here). On the copyright front, as we’ve previously discussed, websites that facilitate or traffic in unlawfully copied entertainment content, such as cyberlockers, cost the creative industry millions of dollars each year. The latest market-based effort to combat copyright theft is a voluntary agreement between the Motion Picture Association of America (MPAA) and Donuts, Inc. (Donuts). According to the agreement signed on February 9, Donuts, the world’s largest domain-name registry, will designate MPAA as a “Trusted Notifier” and treat MPAA referrals of large-scale piracy expeditiously and with a presumption of credibility. Should Donuts find no holes in an MPAA request, it will suspend or terminate the domain. Continue reading