Discussing the D.C. Circuit's "Open Internet Order" Decision—And What Comes Next
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Last Tuesday, the D.C. Circuit issued its long-awaited decision in U.S. Telecom Association v. FCC, better known as the “net neutrality case.” Myriad petitioners challenge the FCC’s “Open Internet Order,” the agency’s 2015 decision to unilaterally reclassify broadband Internet access services as a “telecommunications service” rather than an “information service,” and thus to regulate broadband Internet as a “common carrier” — that is, much like a 19th century railroad.
The court’s split decision (with Judges Tatel and Srinivasan in the majority, and Judge Williams dissenting) already has spurred no shortage of commentary, including Seth Cooper at this blog, and Aaron Nielson at “Notice and Comment,” the official blog of the Yale Journal on Regulation and the ABA’s Administrative Law Section.
In the same vein, on Friday I had the pleasure of discussing the D.C. Circuit panel's decision with Brett Shumate, on a Federalist Society teleforum. (Brett and I both represented challengers in this case, so it’s safe to say that the discussion was more pleasing than the panel's decision.) The audio is now available on the Federalist Society’s website. Thanks for all the good questions.
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Adam J. White is a research fellow with the Hoover Institution. Before joining Hoover, he represented intervenors TechFreedom et al. in this case, as counsel at Boyden Gray & Associates. He continues to be “of counsel” to Boyden Gray & Associates in this litigation.
Partner, McDermott Will & Emery
Robert (Bob) J. Cordy’s practice includes business litigation, white collar criminal defense, internal investigations, appellate work and major public/private projects.
Bob previously served for 16 years as an associate justice of the Massachusetts Supreme Judicial Court. He has worked with judges from Mexico, Russia, China, Kosovo, Turkey, Uzbekistan, Ukraine, Afghanistan and other countries on issues relating to judicial ethics, rule of law principles and the American judicial system. Bob also served as chair of the Supreme Judicial Court Rules Committee, co-chair of the Supreme Judicial Court Judiciary-Media Committee and member of the Committee for Capital Planning for the Judicial System.
Bob began his career working for the Massachusetts Public Defenders Office, and subsequently held positions with the Massachusetts Department of Revenue, the Massachusetts State Ethics Commission and the United States Attorney’s Office where he became the chief of the Public Corruption prosecution unit. Bob also served as chief legal counsel to Massachusetts Governor William F. Weld, working on a wide range of policy issues including regulatory and criminal justice reform, ethics in government and the appointment of judges. Before his appointment to the Supreme Judicial Court in 2001, Bob was a partner and head of McDermott’s Boston office.
Bob is also a member of our legal cannabis industry group. Our Cannabis Industry group is a multidisciplinary team of lawyers providing clients with regulatory, litigation, intellectual property, trade and tax services with respect to their investments and participation in the cannabis industry, all subject to the Firm’s obligations under federal and state laws and bar licensure rules.
Former Associate Justice, Massachusetts Supreme Judicial Court
Judith Cathy Arnold Cowin is a retired justice of the Massachusetts Supreme Judicial Court. She was born in Boston. Cowin received her undergraduate degree from Wellesley College and her J.D. degree from Harvard Law School.
United States District Judge for the District of Massachusetts
Patti B. Saris is the Chief United States District Judge of the United States District Court for the District of Massachusetts. She is also the former Chair of the United States Sentencing Commission.
Chief Legal Correspondent, CBS News
Jan Crawford is CBS News' chief legal correspondent and contributes regularly to the "CBS Evening News," "CBS This Morning," and "Face the Nation," as well as CBS News Radio and CBSNews.com.
Crawford joined CBS News in October 2009. She had been a regular contributor to CBS News in 2005 to 2006.
Crawford is a recognized authority on the Supreme Court whose 2007 book, "Supreme Conflict: The Inside Story of the Struggle for the Control of the United States Supreme Court" (Penguin Press), gained critical acclaim and became an instant New York Times Bestseller. She began covering the Court in 1994 for the Chicago Tribune and went on to become a law and political correspondent for all ABC News programs, a Supreme Court analyst for The NewsHour With Jim Lehrer on PBS and a legal analyst for CBS News' "CBS Evening News" and "Face the Nation." She has reported on most of the major judicial appointments and confirmation hearings of the past 15 years and amassed crucial sources in the White House, the Justice Department and Congress along the way.
Chief Justice John Roberts granted his first network television interview to Crawford, just one of the rare interviews she was able to obtain with a total of five of the Court's current members, as well as retired Justice Sandra Day O'Connor. Crawford also sat down with then-86-year-old Justice John Paul Stevens in his first television interview, as well as Justices Clarence Thomas, Antonin Scalia and Stephen Breyer.
Crawford's in-depth reports on the Bush Administration's legal war on terror and her exclusive reports on controversial interrogation techniques used for terror suspects have received wide acclaim and been credited with being a catalyst for congressional hearings. Washingtonian Magazine named her one of Washington's top journalists.
Crawford began her journalistic career at the Tribune in 1987, joining the legal affairs beat in 1993, after her graduation from the University of Chicago Law School. The newspaper awarded Crawford its highest award in 2001, for her role on a team of reporters covering the presidential election of 2000, and the legal battles over the White House. She won the same prize for her 13-part series on the post-civil rights South, a project that brought her back to her native Alabama.
Crawford graduated from the University of Alabama in 1987. She has taught journalism at American University and frequently speaks about the Court to universities, law schools, legal organizations and civic groups across the country. She is a member of the New York Bar. She and her family live in Washington D.C.
Laurence H. Silberman Chair in Constitutional Governance and Senior Fellow, American Enterprise Institute; Co-Director, Antonin Scalia Law School’s C. Boyden Gray Center for the Study of the Administrative State
Adam J. White is the Laurence H. Silberman Chair in Constitutional Governance and senior fellow at the American Enterprise Institute, where he focuses on the Supreme Court and the administrative state. Concurrently, he codirects the Antonin Scalia Law School’s C. Boyden Gray Center for the Study of the Administrative State.
Mr. White practiced constitutional and administrative law, particularly in the regulation of energy and financial markets. He started his legal career as a law clerk for Judge David B. Sentelle at the US Court of Appeals for the DC Circuit.
Mr. White has written for the Wall Street Journal, the New York Times, the Washington Post, National Affairs, Commentary, Harvard Journal of Law & Public Policy, and Notre Dame Law Review, among other publications. He is a regular contributor to the Yale Journal on Regulation’s Notice and Comment blog, and for many years, he was one of the Weekly Standard’s lead writers on constitutional law and the Supreme Court.
Mr. White has testified often before Congress, including before the Senate’s Committees on the Judiciary; Commerce, Science, and Transportation; and Homeland Security and Governmental Affairs and before the House’s Judiciary and Financial Services Committees. In 2018, the Senate Committee on the Judiciary called him to testify in Brett Kavanaugh’s Supreme Court confirmation hearings to advise senators on Kavanaugh’s approach to administrative law.
In 2021, he served on the Presidential Commission on the Supreme Court of the United States, where he criticized “Court packing” and other efforts to restructure the Supreme Court. In 2017, he was appointed to serve on the Administrative Conference of the United States. He also serves on the leadership council for the American Bar Association’s Administrative Law and Regulatory Practice Section, which he will chair in 2023–24. Before joining AEI, he was a research fellow at Stanford University’s Hoover Institution and an adjunct fellow at the Manhattan Institute.
Mr. White has a JD from Harvard Law School and a bachelor of business administration from the College of Business at the University of Iowa.