Chevron Deference and Patent Exceptionalism

The Duke Law Journal’s Forty-Sixth Annual Administrative Law Symposium addresses the timely and important topic of patent exceptionalism. Administrative law exceptionalism—the misperception that a particular regulatory field is so different from the rest of the regulatory state that general administrative law principles do not apply—is by no means unique to patent law. Scholars, attorneys, and agency officials in various regulatory fields ranging from immigration to tax have sought, contrary to the Supreme Court’s general guidance, “to carve out an approach to administrative review good for [the regulatory field’s] law only.” This Essay focuses on one of the main debates from the Symposium: whether courts should apply Chevron deference to interpretations of substantive patent law advanced by the U.S. Patent and Trademark Office (PTO). Part I frames the debate about whether Chevron deference should apply, contrasting the positions taken by Stuart Benjamin and Arti Rai on the one hand, and John Golden on the other. After agreeing with Professors Benjamin and Rai that certain PTO interpretations of substantive patent law are probably eligible for Chevron deference, Part II outlines how a stronger case could be made for why it is worth the PTO’s time and energy to seek Chevron deference from the Supreme Court. Among other reasons, the PTO and its U.S. Department of Justice lawyers should request such deference to weaken the Federal Circuit’s control over substantive patent law and reverse an era of patent stare decisis. The Essay concludes by urging patent law scholars to play a more active role in urging courts to abandon patent exceptionalism

Quantifying the Fragility of Galactic Disks in Minor Mergers

We perform fully self-consistent stellar dynamical simulations of the accretion of a companion ("satellite") galaxy by a large disk galaxy to investigate the interaction between the disk, halo, and satellite components of the system during a merger. Our fiducial encounter begins with a satellite in a prograde, circular orbit inclined thirty degrees with respect to the disk plane at a galactocentric distance of six disk scalelengths. The satellite's mass is 10% of the disk's mass and its half-mass radius is about 1.3 kpc. The system is modelled with 500 000 particles, sufficient to mitigate numerical relaxation noise over the merging time. The satellite sinks in only ~1 Gyr and a core containing ~45% of its initial mass reaches the centre of the disk. With so much of the satellite's mass remaining intact, the disk sustains significant damage as the satellite passes through. At the solar circle we find that the disk thickens ~60%, the velocity dispersions increase by \Delta\mbox{\boldmath\sigma} \simeq (10,8,8) km/s to $(\sigma_R, \sigma_\phi, \sigma_z) \simeq (48, 42, 38)$ km/s, and the asymmetric drift is unchanged at ~18 km/s. Although the disk is not destroyed by these events (hence "minor" mergers), its final state resembles a disk galaxy of earlier Hubble type than its initial state, thicker and hotter, with the satellite's core enhancing the bulge. Thus minor mergers continue to be a promising mechanism for driving galaxy evolution.Comment: LaTeX with AASTeX macros; text only. For PostScript with figures embedded, go to http://www.ucolick.org/~iwalker/ss

Does the Legal Standard Matter? Empirical Answers to Justice Kennedy's Questions in Nken v. Holder

In response to Fatma Marouf, Michael Kagan & Rebecca Gill, Justice on the Fly: The Danger of Errant Deportations, 75 Ohio St. L.J. 337 (2014)

Interpreting the Administrative Procedure Act: A Literature Review

The modern administrative state has changed substantially since Congress enacted the Administrative Procedure Act (APA) in 1946. Yet Congress has done little to modernize the APA in those intervening seventy-seven years. That does not mean the APA has remained unchanged. Federal courts have substantially refashioned the APA’s requirements for administrative procedure and judicial review of agency action. Perhaps unsurprisingly, calls to return to either the statutory text or the original meaning (or both) have intensified in recent years. “APA originalism” projects abound. As part of the Notre Dame Law Review’s Symposium on the History of the Administrative Procedure Act and Judicial Review, this Essay provides a literature review of the competing methodologies for interpreting the APA: textualism, originalism, purposivism (or pragmatism), and a more dynamic or living approach that encourages administrative common law. This Essay concludes by embracing a middle-ground approach: The Supreme Court (and lower courts) should answer open statutory questions based on the text, structure, context, and original understanding of the APA. But when it comes to interpretive questions courts have already answered, the pull of statutory stare decisis should be quite strong, and reform to those precedents should be left largely to Congress. This approach best advances administrative law’s rule-of-law values such as predictability, reliance, stability, and the separation of powers

The Role of Neurotensin Receptors on Visceral Pain and Activity Levels in Mice.

This study examines the effects of neurotensin (NT) receptor sites on the sensation of visceral pain. Previous work by researchers has found, through the use of NT analogs, that visceral pain is closely associated with NT receptor 2 (NTSR2). This study tested 70 genetically modified mice. The mice were either missing NTSR1, NTSR2, or were wild-type (WT) mice that were not missing any NT receptors. The mice were injected intraperitoneally with either saline or acetic acid then observed for a 60 minute period and writhing behavior was recorded. Twenty four hours later activity levels were recorded in the open field assay. We found that contrary to previous research, NTSR2 is not solely responsible in the sensation of visceral pain. We also found that NTSR1 plays a more significant role than NTSR2, contrary to previous research. Additionally, we found that the NT receptors may be affected by age related factors. The findings of this study suggest that NTSR2 does in fact play a role in the sensation of visceral pain but that NTSR1 may modulate the degree of activation of NTSR2. It can also be concluded that age may have a role in the effectiveness of NTSR sites in visceral pain. This information allows for further research to analyze possible age-dependent effects of NT receptor sites that could alter the possible usefulness of NT analogues in the future

Responding to the New Major Questions Doctrine

The new major questions doctrine has been a focal point in administrative law scholarship and litigation over the past year. One overarching theme is that the doctrine is a deregulatory judicial power grab from both the executive and legislative branches. It limits the president’s ability to pursue a major policy agenda through regulation. And in the current era of political polarization, Congress is unlikely to have the capacity to pass legislation to provide the judicially required clear authorization for agencies to regulate major questions. Especially considering the various “vetogates” imposed by Senate and House rules, it is fair to conclude that the new major questions doctrine will be difficult for Congress to override via legislation. Thus, its predominant, asymmetric effect will be deregulatory, as opposed to getting Congress to make the major value judgments in federal lawmaking.But that does not have to be the case. Congress has tools at its disposal to respond to the major questions doctrine. I focus here on one: Congress could enact a Congressional Review Act (CRA) for the major questions doctrine. This fast-track legislative process would bypass the Senate filibuster and similar congressional slow-down mechanisms whenever a federal court invalidates an agency rule on major questions doctrine grounds. The successful passage of a CRA-like joint resolution would amend the agency’s governing statute to expressly authorize the regulatory power that the agency had claimed in the judicially invalidated rule. This proposal would encourage Congress to decide the major policy question itself—helping to restore Congress’s legislative role in the modern administrative state—and would counteract the major questions doctrine’s asymmetric deregulatory effects

A Congressional Review Act for the Major Questions Doctrine

Last Term, the Supreme Court recognized a new major questions doctrine, which requires Congress to provide clear statutory authorization for an agency to regulate on a question of great economic or political significance. This new substantive canon of statutory interpretation will be invoked in court challenges to federal agency actions across the country, and it will no doubt spark considerable scholarly attention. This Essay does not wade into those doctrinal or theoretical debates. Instead, it suggests one way Congress could respond: by enacting a Congressional Review Act for the major questions doctrine. In other words, Congress could establish a fast-track legislative process that bypasses the Senate filibuster and similar slow-down mechanisms whenever a federal court invalidates an agency rule on major questions doctrine grounds. The successful passage of such a joint resolution would amend the agency’s governing statute to authorize expressly the regulatory power the agency had claimed in the invalidated rule. In so doing, Congress would more easily have the opportunity to decide the major policy question itself—tempering the new doctrine’s asymmetric deregulatory effects and allowing Congress to reassert its primary role in making the major value judgments in federal lawmaking