The D.C. Circuit today is in Utah! In about an hour, Judges Garland, Griffith, and Rao will visit BYU Law (where I teach) to judge the law school’s annual Rex E. Lee Moot Court Competition Finals. That doesn’t happen every day.* Because my day will be spent hosting, this post will be quick. But have […]
Pursuant to the Constitution’s Article VI Supremacy Clause, federal laws and regulations preempt conflicting state laws. But may state laws be preempted when they clash with a federal policy of nonregulation? The answer to that question may well determine whether the Federal Communications Commission’s 2018 Restoring Internet Freedom Order (RIF Order) preempts state net neutrality […]
The Free State Foundation has released a set of short, generally positive reactions to FCC Chairman Ajit Pai’s proposed Restoring Internet Freedom Order, which would undo the FCC’s net neutrality/open internet order. The contributors include Babette Boliek, Timothy Brennan, Michelle Connolly, Robert Crandall, Richard Epstein, Gus Hurwitz, Daniel Lyons, James Prieger, and Christopher Yoo. I also contributed a […]
As evidenced by the confusion expressed by multiple Justices in last Term’s Gonzalez v. Google, there is little consensus as to the scope of Section 230, the law that broadly immunizes internet platforms from liability for third-party content. This is particularly striking given that no statute has had a bigger impact on the internet than Section […]
With the Senate’s confirmation of Anna Gomez as the fifth member of the Federal Communications Commission, the Democrats finally have their long-awaited 3-2 majority. So FCC Chairman Jessica Rosenworcel didn’t waste any time in initiating a rulemaking proceeding proposing to reimpose “Net Neutrality” regulations on Internet service providers (ISPs) such as Verizon, Comcast, and dozens of others. […]
I confess that I haven’t closely followed Arizona v. City and County of San Francisco — argued today in the Supreme Court. After reviewing the transcript from the oral argument, however, it turns out that the case may raise pretty significant questions about remedies in administrative law. The question presented is “[w]hether States with interests […]
Private social media companies regulate much more speech than any government does, and their platforms are being used to bring about serious harm. Yet companies govern largely on their own, and in secret. To correct this, advocates have proposed that companies follow international human-rights law. That law–by far the world’s best-known rules for governing speech–could improve […]
Nope!* * It’s been a good run. If you’re interested, here is the complete list of posts: August 2015: Obamacare Round 3? King Solomon and the APA “It was the best of times ….” Can You Keep a Secret? September 2015: The Second Most Important Court? The Future of […]
As I blogged about back in February, the Hastings Law Journal hosted a terrific live symposium on February 21st (the last time I traveled anywhere outside central Ohio for work) on Administrative Law in the Age of Trump. The law journal editors were absolutely fantastic, and the print issue from that symposium has now been […]
In his forthcoming Hastings Law Journal article, Sticky Regulations and Net Neutrality Restoring Internet Freedom, Aaron Nielson argues, correctly I think, that “[s]tickiness allows regulated parties to invest with greater confidence that they will be able to recoup their investment over the long run – which enhanced investment in turn better allows agencies to pursue […]
The Congressional Review Act (“the CRA”)[1] establishes an expedited legislative process for preventing final agency rules from going into effect. It provides a sixty-day period for Congress to adopt and the President to sign a resolution disapproving an agency rule. 5 U.S.C. §802(a). If a disapproval resolution is adopted, the agency can neither “reissue [the […]
The D.C. Circuit released its opinion in Mozilla v. FCC, which largely upheld the Federal Communications Commission’s (FCC’s) Restoring Internet Freedom order, on October 1, 2019. Much of the ensuing commentary and policy debate will no doubt center on the fact that the court upheld the substance of the order but struck down the provision […]
The House of Representatives on Wednesday passed the Save the Internet Act of 2019. In broad strokes, the bill would restore the Obama-era FCC’s order that classified Internet service providers as “telecommunications carriers” subject to regulation under Title II of the Communications Act and imposed a set of net neutrality rules on ISPs pursuant to […]
This was a quiet week in the D.C. Circuit — that is, unless you study Internet Law.* The D.C. Circuit again confronted the turbulent waters of “net neutrality.” Indeed, it did so in two ways, one high profile and one low profile. High profile, more than 20 States refiled their petition for review of the […]
Introduction The United States Senate began confirmation hearings on March 20 to vet Neil Gorsuch, who was nominated to succeed the late Supreme Court Justice Antonin Scalia. Lawmakers are expected to apply litmus tests, probing him on issues such as abortion. They should also delve into his views on technology. As Wired’s political reporter Issie […]