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Disguised Patent Policymaking, Saurabh Vishnubhakat Oct 2019

Disguised Patent Policymaking, Saurabh Vishnubhakat

Faculty Scholarship

Patent Office power has grown immensely in this decade, and the agency is wielding its power in predictably troubling ways. Like other agencies, it injects politics into its decisions while relying on technocratic justifications. It also reads grants of authority expansively to aggrandize its power, especially to the detriment of judicial checks on agency action. However, this story of Patent Office ascendancy differs from that of other agencies in two important respects. One is that the U.S. patent system still remains primarily a means for allocating property rights, not a comprehensive regime of industrial regulation. Thus, the Patent Office cannot …


Capturing The Regulatory Agenda: An Empirical Study Of Agency Responsiveness To Rulemaking Petitions, Daniel E. Walters Mar 2019

Capturing The Regulatory Agenda: An Empirical Study Of Agency Responsiveness To Rulemaking Petitions, Daniel E. Walters

Faculty Scholarship

In environmental regulation as well as in other regulatory domains, a critical question is how outside interests shape the rulemaking agenda. A great deal of skepticism toward regulation stems from the widespread perception that agencies excessively, or even exclusively, cater to business interests. One answer to these concerns is administrative procedure, in particular rulemaking petitions, which are provided for in the Administrative Procedure Act and in many substantive environmental statutes. Although rulemaking petitions could in theory be used by business interests to strengthen their hold on regulatory agenda-setting, a growing number of scholars, highlighting the critical role a rulemaking petition …


The Self-Delegation False Alarm: Analyzing Auer Deference’S Effect On Agency Rules, Daniel E. Walters Jan 2019

The Self-Delegation False Alarm: Analyzing Auer Deference’S Effect On Agency Rules, Daniel E. Walters

Faculty Scholarship

Auer deference holds that reviewing courts should defer to agen­cies when the latter interpret their own preexisting regulations. This doc­trine relieves pressure on agencies to undergo costly notice-and-com­ment rulemaking each time interpretation of existing regulations is neces­sary. But according to some leading scholars and jurists, the doc­trine actually encourages agencies to promulgate vague rules in the first instance, augmenting agency power and violating core separation of pow­ers norms in the process. The claim that Auer perversely encourages agencies to “self-delegate”—that is, to create vague rules that can later be informally interpreted by agencies with latitude due to judicial defer­ence—has helped …


Global Platform Governance: Private Power In The Shadow Of The State, Hannah Bloch-Wehba Jan 2019

Global Platform Governance: Private Power In The Shadow Of The State, Hannah Bloch-Wehba

Faculty Scholarship

Online intermediaries—search engines, social media platforms, even e-commerce businesses—are increasingly required to make critical decisions about free expression, individual privacy, and property rights under domestic law. These requirements arise in contexts that include the right to be forgotten, hate speech, “terrorist” speech, and copyright and intellectual property. At the same time, these disputes about online speech are increasingly borderless. Many laws targeting online speech and privacy are explicitly extraterritorial in scope. Even when not, some courts have ruled that they have jurisdiction to enforce compliance on a global scale. And governments are also demanding that platforms remove content—on a global …