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
Next Tuesday, August 11, the U.S. Court of Appeals for the Federal Circuit will hear oral argument in ClearCorrect Operating, LLC v. International Trade Commission, a case that nominally involves a cease-and-desist order the International Trade Commission (ITC) imposed on a data file that contained a digital model of crooked teeth. As numerous amici in the case assert, however, the court’s ultimate decision could have significance well beyond digital teeth images; it could establish standards for the Commission’s jurisdiction over international trade in digitalized goods.
The case followed a routine path from ITC to the Federal Circuit. Align Technology complained to ITC that ClearCorrect was importing goods into the United States that infringed Align’s patents. Both companies create patient-specific “aligners” to correct crooked teeth. ClearCorrect’s facility in Texas would download data of a model created in Pakistan from a foreign-based server, and then use that data to create the aligner. Align alleged that the data “imported” from the foreign server constituted an “article,” under 19 U.S.C. § 1337, over which ITC had jurisdiction. Continue reading
The government of Venezuela has become a notorious abuser of private property rights, seizing the property of corporations and political opponents without offering any compensation. Unable to obtain redress in Venezuelan courts, property owners with increasing frequency have turned to U.S. courts for compensation. The U.S. Court of Appelas for the Eleventh and D.C. Circuits issued nearly simultaneous decisions earlier this month in suits filed by property owners against Venezuela. While the courts reached facially inconsistent results—the Eleventh Circuit dismissed one property owner’s claim while the D.C. Circuit allowed the claims of another group of property owners to move forward—the two courts sent a similar message. Both courts made clear that while they are reluctant to inquire into the validity of a foreign sovereign’s internal conduct, such judicial restraint does not prevent courts from protecting Americans’ rights when property is taken in clear violation of international law.
Any effort to sue a foreign sovereign in a U.S. court faces a major obstacle: the Foreign Sovereign Immunities Act (FSIA). The Supreme Court has held that the FSIA is the sole basis for obtaining jurisdiction over a foreign state in our courts. The statute states explicitly that a foreign state is absolutely immune from the jurisdiction of U.S. courts unless a specific FSIA statutory exemption is applicable. The only exemption potentially available to those whose property has been confiscated is 28 U.S.C. § 1605(a)(3), which denies immunity in cases “in which rights in property taken in violation of international law are in issue.” The Eleventh and D.C. Circuits agreed that the availability of the § 1605(a)(3) exemption depends to a large extent on whether the plaintiff is a citizen of the foreign state; if so, federal courts are far less willing to exercise jurisdiction. Continue reading
This video explains why Laura and Marvin Horne have taken their case that a U.S. Department of Agriculture marketing program violates the Fifth Amendment of the Constitution all the way to the Supreme Court.
Washington Legal Foundation filed an amicus brief in Horne v. USDA supporting the farmers’ argument that the program’s seizure of raisin crops without compensation is an unconstitutional taking. The Court heard oral arguments in the case on April 22. On the afternoon of the argument, WLF held a Web Seminar program assessing the arguments, which featured one of the Hornes’ attorneys, Stephen Schwartz. A video of the program can be viewed here.
On April 24, 2013, House Judiciary Committee Chairman Bob Goodlatte announced that the committee would be undertaking “a wide review of our nation’s copyright laws and related enforcement mechanisms.” Five months later, UC Berkeley School of Law Professor Pamela Samuelson formally requested that the American Law Institute (ALI) prepare a restatement of copyright law. It might seem odd that a prestigious institution like ALI would devote time and resources to restating the “law of copyright” when the U.S. House of Representatives is taking steps to possibly amend the federal Copyright Act. But it is going forward with a Restatement of the Law, Copyright project.
ALI is an organization of academics, lawyers, judges, and other legal professionals that studies various areas of law and prepares treatises that “clarify, modernize, and otherwise improve the law.” Courts and legislatures look upon ALI’s best-known treatises, such as the Restatement of Contracts, as authoritative summaries of state common law—i.e. legal principles derived from judicial decisions. A review of its current projects, though, suggests that ALI is drifting away from its traditional approach.
Professor Samuelson’s letter stated that an ALI copyright project “could provide an invaluable and timely analysis and framework for other reform efforts that are currently underway.” Further on in the letter she implies a much larger ambition when decrying the “long and contentious process” of passing laws that makes “comprehensive reform of the statute . . . unlikely to happen any time soon”: Lawyers, academics, and judges at ALI, she seems to suggest, are better positioned to bring clarity to the law of copyright than elected officials in Congress. Continue reading