Notice & Comment

D.C. Circuit Review – Reviewed: Sticky Regulations and N̶e̶t̶ ̶N̶e̶u̶t̶r̶a̶l̶i̶t̶y̶ Restoring Internet Freedom UPDATED

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 everyday.*

Because my day will be spent hosting, this post will be quick. But have no fear; it for a change will have quality content. In particular, I’m pleased to announce that I have just posted on SSRN my latest essay: Sticky Regulations and N̶e̶t̶ ̶N̶e̶u̶t̶r̶a̶l̶i̶t̶y̶ Restoring Internet Freedom, forthcoming in the Hastings Law Journal as part of its annual symposium.

Here is the Tweet (ugh):

And here is the abstract:

If you follow the D.C. Circuit — and if you don’t, you almost certainly are not reading this post — then you know that the Net Neutrality/Restoring Internet Freedom cases have been some of the most important over the last few years. My essay examines those cases through the lens of “Sticky Regulations” and “Optimal Ossification.” Give it a read! And comments are definitely welcome.

(The D.C. Circuit decided just three cases this week. In United States v. Smith, Judge Griffith — joined by Judges Henderson and Millett — affirmed a criminal conviction. The reason why this opinion is published, presumably, is to make clear that the D.C. Circuit agrees with other courts that “demands for cash can, under certain circumstances, ‘carry with them an implicit threat: if the money is not produced, harm to the teller or other bank employee may result.'” In K&D LLC v. Trump Old Post Office LLC, Judge Griffith — this time joined by Judges Garland and Williams — affirmed judgment in favor of “President Donald Trump’s eponymous
Pennsylvania Avenue hotel” in an unfair competition suit. The plaintiff’s theory was that President Trump receives an “unfair advantage” in the restaurant world because he is the president. Unsurprisingly, that is not grounds for a lawsuit. The removal discussion is especially interesting. And in Depu v. Yahoo! Inc., Judge Garland — joined by Chief Judge Srinivasan and** Judge Wilkins — addressed the claims of “Chinese citizens who were imprisoned for expressing dissent on the internet.” Plaintiffs alleged that Yahoo “established a charitable trust to provide humanitarian and legal assistance to imprisoned Chinese dissidents” but improperly depleted it. The panel held that the allegations were sufficiently plausible to withstand a motion to dismiss. I think it is safe to say that Depu has more discussion of trust law than 99.99% of D.C. Circuit cases.)

UPDATE:

Wow, the D.C. Circuit did something unusual — it issued another opinion after its regular release. And the opinion is a big one: Committee on the Judiciary v. McGahn. Here is the opening paragraph:

Here is the key analysis:

And this:

Here is Judge Henderson’s intro:

And here is how the dissent begins:

I don’t think we’ve heard the last of this case. Presumably the House will petition for rehearing or certiorari.


* But it isn’t unprecedented to have an all-DC Circuit moot court panel. A few years ago, BYU Law hosted Judges Griffith, Millett, and Sentelle.

** “Chief Judge Srinivasan was a member of the panel at the time the case was argued but did not participate in this opinion.”

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