IPcentral Weblog
  The DACA Blog

Tuesday, March 16, 2004

Curiouser and Curiouser-Law and Economics in TRO-Land II
(previous | next)

Back on March 3, in my blog "Law and Economics in TRO-Land" I criticized Congressman John Conyers' suggestion that certiorari should be sought to review the DC Circuit's TRO decision because, in his view, the court "is out of touch with mainstream economic concerns." Although I'm sure I disagree with Conyers' views on economics, I pointed out there that what is important in considering whether to seek cert is whether the court's interpretation of the 1996 Act is correct. The court doesn't sit to make economic policy.

Now comes the March 15 "Dear John" letter from Senators Stevens, Burns, Hollings, and Inouye, urging Attorney General Ashcroft to seek cert. It is principally devoted to arguing that, in the Senators' view, the DC Circuit decision will have an adverse impact on consumers and jobs. I disagree, of course. Unfortunately, the reality is that--until the FCC's UNE rules are scaled back--many more forests will be decimated as various parties debate the impact of the current unlimited unbundling regime.

With all due respect, what strikes me as especially odd about the Senators' letter is that to the extent it refers to the law at all, it cites Section 251(d)(3), ignoring completely Section 251(d)(2), the "impairment" standard provision that is at the heart of the DC Circuit's decision. [The court held that the states' challenge to the premptive scope of Section 251(d)(3) was not ripe for decision.]

Ultimately, arguments about whether the Supreme Court should be asked to grant cert must be grounded at least to a large extent in the law, and the law that actually was at the core of the DC Circuit's decision, the provision containing the "impairment" standard. Arguments like the ones contained in the Senators' letter are enough to send the Attorney General back to the hospital with another gallstone!

posted by Randolph May @ 5:11 PM | General

Share |

Link to this Entry | Printer-Friendly

Post a Comment:

Blog Main
RSS Feed  
Recent Posts
  EFF-PFF Amicus Brief in Schwarzenegger v. EMA Supreme Court Videogame Violence Case
New OECD Study Finds That Improved IPR Protections Benefit Developing Countries
Hubris, Cowardice, File-sharing, and TechDirt
iPhones, DRM, and Doom-Mongers
"Rogue Archivist" Carl Malamud On How to Fix Gov2.0
Coping with Information Overload: Thoughts on Hamlet's BlackBerry by William Powers
How Many Times Has Michael "Dr. Doom" Copps Forecast an Internet Apocalypse?
Google / Verizon Proposal May Be Important Compromise, But Regulatory Trajectory Concerns Many
Two Schools of Internet Pessimism
GAO: Wireless Prices Plummeting; Public Knowledge: We Must Regulate!
Archives by Month
  September 2010
August 2010
July 2010
June 2010
  - (see all)
Archives by Topic
  - A La Carte
- Add category
- Advertising & Marketing
- Antitrust & Competition Policy
- Appleplectics
- Books & Book Reviews
- Broadband
- Cable
- Campaign Finance Law
- Capitalism
- Capitol Hill
- China
- Commons
- Communications
- Copyright
- Cutting the Video Cord
- Cyber-Security
- Digital Americas
- Digital Europe
- Digital Europe 2006
- Digital TV
- E-commerce
- e-Government & Transparency
- Economics
- Education
- Electricity
- Energy
- Events
- Exaflood
- Free Speech
- Gambling
- General
- Generic Rant
- Global Innovation
- Googlephobia
- Googlephobia
- Human Capital
- Innovation
- Intermediary Deputization & Section 230
- Internet
- Internet Governance
- Internet TV
- Interoperability
- IP
- Local Franchising
- Mass Media
- Media Regulation
- Monetary Policy
- Municipal Ownership
- Net Neutrality
- Neutrality
- Non-PFF Podcasts
- Ongoing Series
- Online Safety & Parental Controls
- Open Source
- PFF Podcasts
- Philosophy / Cyber-Libertarianism
- Privacy
- Privacy Solutions
- Regulation
- Search
- Security
- Software
- Space
- Spectrum
- Sports
- State Policy
- Supreme Court
- Taxes
- The FCC
- The FTC
- The News Frontier
- Think Tanks
- Trade
- Trademark
- Universal Service
- Video Games & Virtual Worlds
- VoIP
- What We're Reading
- Wireless
- Wireline
Archives by Author
PFF Blogosphere Archives
We welcome comments by email - look for a link to the author's email address in the byline of each post. Please let us know if we may publish your remarks.

The Progress & Freedom Foundation