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Ajit Pai will step down from his position as chairman of the Federal Communications Commission (FCC) effective Jan. 20. Beginning Jan. 15, Truth on the Market will host a symposium exploring Pai’s tenure, with contributions from a range of scholars and practitioners.

Read the full piece here.

On February 15, 2019, President Donald Trump issued Proclamation 9844 pursuant to the National Emergencies Act of 19761 (NEA), declaring a “National Emergency Concerning the Southern Border of the United States.” On February 27, the House of Representatives voted 245–182 to overturn the declaration of national emergency; on March 14, the Senate agreed with the House in a 59–41 vote. The following day, the President vetoed the joint resolution. Neither house of Congress was able to override the veto and so, more than a year later, the emergency remains in place.

The border wall emergency declared by President Trump has awakened strident opposition in Congress, which is a historical anomaly. And yet, although virtually none of the previous declarations engendered the vehement outcry that accompanied the border wall emergency declaration, they were substantially different only in scope, not in kind. Including Trump’s border wall emergency declaration and four subsequent emergency declarations, Presidents going back to Jimmy Carter have declared a total of 57 emergencies under the NEA. Thirty-four of these are still active. And all but four of them could hardly be called emergencies. Even without the partisan political context of the border wall dispute, any of these should have been sufficient to raise the question of whether and how to rein in presidential power.

Monday July 22, ICLE filed a regulatory comment arguing the leased access requirements enforced by the FCC are unconstitutional compelled speech that violate the First Amendment.

Read the full piece here.

ICLE submitted comments to the FCC on the First Amendment implications of the leased access rules. Associate Director, Legal Research Ben Sperry argued the changes in the video marketplace towards competition undercut the justification for subjecting regulation of cable operators’ speech to only intermediate scrutiny. As a result, the leased access rules should be reviewed as compelled speech under strict scrutiny. The leased access rules are not narrowly tailored to a compelling government interest and therefore would fail under the strict scrutiny standard.

Click here to read the full comments.

In the “News Roundup” of episode 269. A McLaughlin Group for Cybersecurity, Gus Hurwitz covers the Supreme Court’s ruling on when a forum is subject to First Amendment limits. The full episode is embedded below.

https://www.steptoe.com/podcasts/TheCyberlawPodcast-269.mp3

 

Summary

Chairwoman Greenstein, Vice Chairman Lagana, and members of the Law and Public Safety Committee, thank you for giving me the opportunity to testify before you.

The general thrust of my comments today is that bad incentives exist in the law enforcement practice known as Civil Asset Forfeiture (“CAF”) that lead to violations of our citizens’ civil rights. Without the support of the New Jersey legislature, it will be next to impossible to identify where and how those incentives are working to undermine our justice system. Thus, S1963, and its counterpart in the General Assembly, A3442, provide a crucial first step in the process of coming to understand how CAF is practiced in New Jersey, and where our legislature will need to look next to root out any systematic injustices being perpetrated through CAF programs.

I believe there is a problem with how civil asset forfeiture is practiced on the whole, but even for those relatively more supportive of the practice, there is a way to conceptually divide the potentially problematic aspects of CAF in order to find areas for reform.

The problems of CAF are separable into two conceptual groups: in the first group there are bad systemic incentives that are distinct from the second group of more specific problems of procedural justice in individual cases. Indeed, if bad incentives exist within a legal system, that surely constitutes a breach of procedural justice as well, but the problems associated with systemic incentives operate on a global scale and are addressable as such, whereas the procedural justice issues such as presumptions, proof standards, and civil rights guarantees are typically more cognizable within a particular case.

When we talk about the incentives that drive CAF as a general law enforcement program, we think about things like whether law enforcement can retain the proceeds of the program and what utility those programs have generally on proceedings against criminal networks. On the other hand, when we think about procedural justice concerns, like the right to representation or the standard of proof, we are focused more on how the operation of a program affects individual citizens that are brought into the system as defendants (or, more precisely, parties with claims to property that is subject to a forfeiture proceeding).

The procedural justice problems that exist in CAF programs are troubling, and deserve the careful consideration of this body. Today, however, I intend to focus my remarks on the incentive problems with CAF programs because they are more directly implicated, and would stand most to be rectified, by the pending legislation before the Senate and Assembly.

As detailed further below, there are due process protections, guaranteed by the U.S. and New Jersey Constitutions, that are owed to individuals subjected to CAF proceedings. Yet, as CAF programs operate, these protections are systematically undermined. Based on the relevant case law from the Supreme Court, the due process protections are clear: individuals entrusted with protecting the public good, like prosecutors and other law enforcement officers, have an obligation to act on behalf of the community, free from incentives to bend the power of their offices to self-serving ends.

CAF has a place in law enforcement, and can be a useful tool for disrupting criminal networks. There must be, however, systemic protections that disrupt the possibility for bad incentives to work on our public servants. First, these protections should include a requirement that seized property be sent to some neutral fund — the general fund, a fund for drug treatment or prisoner reentry, or something of similar general applicability. By allowing law enforcement personnel to retain seized property for use by their department, we allow a distorting pressure to be placed on our public servants that is flatly unconstitutional.

Second, and the subject of today’s hearing, there should be general, standardized reporting requirements applied through uniform legislation on all agencies that seize property. These reports should be publicly available, and presented in a format that helps citizens to understand what property is being taken, what sorts of people it is being taken from, how much is being taken, and what exact uses it is being put to. Without this sort of transparency, we introduce yet more distortion into the administration of justice.

There is much more to do. We need, I believe, strong civil rights protections for persons who are subject to CAF proceedings. But I also believe that starting with greater transparency requirements like those contained in the bills under consideration would go a long way toward rectifying some of the major flaws in CAF proceedings.

Behavioral economics has taken the academy by storm over the past two decades. The Obama administration has even looked to the discipline—which posits that psychological biases frequently lead consumers to make bad economic decisions—to shape government policy. But is behavioral economics relevant to interpreting the Constitution? That’s the novel claim raised by Expressions Hair Design v. Schneiderman, which the Supreme Court will hear Tuesday.

Read the full piece here.

About a month ago, I was asked by some friends about the shift from the first-to-invent patent system to a first-to-file patent system in the America Invents Act of 2011 (AIA). I was involved briefly in the policy debates in the spring of 2011 leading up to the enactment of the AIA, and so this query prompted me to share a short essay I wrote in May 2011 on this issue. In this essay, I summarized my historical scholarship I had published up to that point in law journals on the legal definition and protection of patents in the Founding Era and in the early American Republic. I concluded that a shift to a first-to-file patent system contradicted both the constitutional text and the early judicial interpretations of the patent statutes that secured patent rights to first inventors.

Read the full piece here.

On March 31, a federal judge gave the city of Boston six months to rectify the disparities between the way it treats Transportation Network Companies (“TNC”) (such as Uber and Lyft) and taxicab companies. This comes pursuant to an order by US District Court Judge Nathaniel M. Gorton in a suit filed by members of the Boston taxi industry against the city and various officials. The suit is an interesting one because it reveals unusual fault lines in the ongoing struggle between taxi companies, local regulators, and the way that federal law recognizes and respects property and economic rights.

Read the full piece here.