Certiorari, Universality, and a Patent Puzzle

The most important determinant of a case’s chances for Supreme Court review is a circuit split: If two courts of appeals have decided the same issue differently, review is substantially more likely. But practically every appeal in a patent case makes its way to a single court—the Court of Appeals for the Federal Circuit. How, then, does the Supreme Court decide whether to grant certiorari in a patent case? The petitions for certiorari in the Court’s patent docket suggest an answer: The Supreme Court looks for splits anyway. These splits, however, are of a different sort. Rather than consider whether two courts of appeals have decided the same issue differently, the Court looks to whether two fields of law conflict over the application of the same transsubstantive doctrine. Such “field splits” are unusual candidates for Supreme Court attention. After all, the Court’s interest in circuit splits is motivated by a desire for geographic uniformity in federal law. But field splits, unlike circuit splits, do not give rise to forum shopping concerns, do not undermine the predictability of the law, nor otherwise implicate the legal values that counsel in favor of uniformity. Instead, the Supreme Court’s attention to field splits may suggest that legal universality—consistency across substantive fields of law—is an important (but unstated) priority in certiorari decisionmaking. The exercise of this universality interest through certiorari decisions in patent cases has several consequences for the Supreme Court’s agenda. The Court must better explain why field splits merit review, and we must better understand how to distinguish those field splits that implicate the Court’s universality- related concerns from those that do not

Symmetry and (Network) Neutrality

In this short Essay, I take the opportunity to highlight one further potential asymmetry that may yet emerge from the Supreme Court’s application of Chevron’s many doctrines. Drawing on then-Judge Kavanaugh’s disdissental from the D.C. Circuit’s decision affirming network neutrality rules, I suggest that there is at least one vote on the Supreme Court—and perhaps more—for an asymmetric approach to the major questions doctrine. Moreover, I demonstrate how asymmetry in this context is deeply irrational. As applied to network neutrality, the asymmetry has at least one of two effects. One, it might simply favor one large industry over another, subjecting one inter-sector wealth transfer to heightened scrutiny, while treating an analogous wealth transfer—in the opposite direction—deferentially. But the judiciary is not typically in the business of favoring one industrial sector over another. Two, it subjects consumer-protection devices to increased regulatory scrutiny, thereby shifting the costs and burdens of overcoming a regulatory default to those entities—consumers—who can likely least afford to bear them. Hence, in more general terms, Justice Kavanaugh’s unbalanced approach to the major questions doctrine tends to undermine many of the values— accountability and expertise, among others—that agency policymaking has long served

Inside the Internet

Conventional wisdom—particularly in the legal literatures—suggests that competition reigns the inside of the internet. This common understanding has shaped regulatory approaches to questions of network security and competition policy among service providers. But the original research presented here undermines that long-held assumption. Where the markets for internet traffic exchange (and related services) have long been thought to be characterized by robust competition among various network services providers, our findings suggest that these markets have consolidated. These trends raise a host of concerns for network reliability, online speech, and consumer choice, among other matters. Indeed, some recent high-profile internet outages reflect some of these concerns. And so we consider how the internet’s regulatory infrastructure might respond to these new revelations about the internet’s interior network infrastructure. Specifically, we call for regulation to enhance visibility of the internet’s interior and to assure a regime of fair carriage for all the internet’s users

Symmetry and (Network) Neutrality

In this short Essay, I take the opportunity to highlight one further potential asymmetry that may yet emerge from the Supreme Court’s application of Chevron’s many doctrines. Drawing on then-Judge Kavanaugh’s disdissental from the D.C. Circuit’s decision affirming network neutrality rules, I suggest that there is at least one vote on the Supreme Court—and perhaps more—for an asymmetric approach to the major questions doctrine. Moreover, I demonstrate how asymmetry in this context is deeply irrational. As applied to network neutrality, the asymmetry has at least one of two effects. One, it might simply favor one large industry over another, subjecting one inter-sector wealth transfer to heightened scrutiny, while treating an analogous wealth transfer—in the opposite direction—deferentially. But the judiciary is not typically in the business of favoring one industrial sector over another. Two, it subjects consumer-protection devices to increased regulatory scrutiny, thereby shifting the costs and burdens of overcoming a regulatory default to those entities—consumers—who can likely least afford to bear them. Hence, in more general terms, Justice Kavanaugh’s unbalanced approach to the major questions doctrine tends to undermine many of the values— accountability and expertise, among others—that agency policymaking has long served