ABA Teleconference: Who Are You to Judge? The Supreme Court Revisits the Constitutionality of Agency Adjudication

by Aaron Nielson — Friday, Feb. 16, 2018@Aaron_L_Nielson

The ABA’s Section of Administrative Law & Regulatory Practice will host an interesting — and free! — teleconference on agency adjudication. Here is the information:

Who Are You to Judge? The Supreme Court Revisits the Constitutionality of Agency Adjudication

February 26, 2018 | 4:00 PM – 5:00 PM EST | Teleconference

Decades after last considering the constitutional limits of agency adjudication, the Supreme Court will decide two significant cases this term that concern how or to what extent federal agencies can adjudicate. The first case, argued in late November 2017, is Oil States Energy Services, LLC v. Greene’s Energy Group, LLC. The Court will decide whether adjudication between two private parties before the Patent Trial and Appeal Board (PTAB)- which can invalidate a patent-violates the U.S. Constitution because it can extinguish property rights in a non-Article III proceeding without a jury. The second case (Lucia v. SEC) asks whether the SEC’s administrative law judges (ALJs) are “officers” under the Appointments Clause. If ALJs are “officers,” the SEC Commissioners themselves, not subordinates, must appoint them.

Both decisions, by focusing on one kind of patent adjudication or one agency’s adjudicators, may appear narrow. But both decisions may have far-reaching ramifications for federal agency adjudication. For instance, if patent invalidation requires an Article III tribunal or jury, does the revocation of a license or other benefit require the same? Even if the Court limits its decisions to patent invalidation, will the federal courts be overwhelmed with patent-invalidity challenges? Will the Supreme Court, as it hinted in one of its recent Article III cases, treat administrative adjudication differently than other kinds of non-Article III tribunals, and how so? If the SEC’s ALJs are “officers,” are the more than 1900 ALJs who work for other agencies also “officers” with improper appointments? If ALJs are officers, are the more than 10,000 non-ALJ adjudicators who share a nearly identical function also officers? And for both patent and ALJ cases, what happens to already decided, pending, and future matters?

Aside from teeing up these questions, both decisions may provide much needed clarification or new approaches for two highly opaque areas of federal constitutional law. Moreover, the cases allow the Court (with its latest addition, Justice Gorsuch) to reveal its current thinking on separation-of-powers issues, which the Court has eagerly embraced over the past several years.

This teleforum will explore these cases, the questions that they present, and their potential implications. Our four participants, experts in administrative, constitutional, or intellectual-property law, are leading scholars who have written on the issues surrounding these cases.

Confirmed Panelists

•John Duffy, Samuel H. McCoy II Professor of Law & Elizabeth D. and Richard A. Merrill Professor of Law, University of Virginia School of Law

•Linda Jellum, Ellison Capers Palmer Sr. Professor of Tax Law, Mercer University School of Law

•Jennifer Mascott, Assistant Professor of Law and Faculty Director of the Supreme Court and Administrative Law Clinics, Antonin Scalia Law School at George Mason University

•Arti K. Rai, Elvin R. Latty Professor of Law and Faculty Director, Center for Innovation Policy, Duke Law School

•Kent Barnett, Associate Professor, University of Georgia School of Law (moderator)

That’s a formidable panel. Click here to register.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

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