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Committee Announces Nominations Hearing

WASHINGTON – U.S. Sen. Roger Wicker, R-Miss., chairman of the Committee on Commerce, Science, and Transportation, will convene a nominations hearing at 10:00 a.m. on Thursday, August 6, 2020. The hearing will consider presidential nominations to the Department of Transportation, Surface Transportation Board, and Amtrak Board of Directors. 

Click here for additional information on nominees.

Witnesses: 

  • Mr. Eric Soskin, of Virginia, to be Inspector General, Department of Transportation
  • Mr. Robert Primus, of New Jersey, to be a Member of the Surface Transportation Board
  • Ms. Sarah Feinberg, of West Virginia, to be a Director of the Amtrak Board of Directors
  • Mr. Chris Koos, of Illinois, to be a Director of the Amtrak Board of Directors

*Witness list subject to change

Hearing Details:

Thursday, August 6, 2020
10:00 a.m.
Full Committee Hearing 

This hearing will take place in the Russell Senate Office Building 253. Witness testimony, opening statements, and a live video of the hearing will be available on www.commerce.senate.gov

*In order to maintain physical distancing as advised by the Office of the Attending Physician, seating for credentialed press will be limited throughout the course of the hearing. Due to current limited access to the Capitol complex, the general public is encouraged to view this hearing via the live stream.

GSA Launches IT Acquisition University

GSA news releases - Thu, 07/30/2020 - 12:00am
On-Demand Training Solution Delivers Education and CLPs on Emerging Tech, IT Modernization   WASHINGTON – The U.S. General Services Administration today announced the launch of its new online training solution for professionals in the world of government IT acquisition, the IT Acquisition...

Building a Stronger and More Resilient Seafood Sector

U.S. Sen. Roger Wicker, R-Miss., chairman of the Committee on Commerce, Science, and Transportation, will convene a hearing titled, “Building a Stronger and More Resilient Seafood Sector,” at 10:00 a.m. on Wednesday, July 29, 2020. This hearing will examine the national and regional impacts of COVID-19 on the seafood industry and the effects of the fish disaster funding provided in the CARES Act. Witnesses will have the opportunity to discuss the work that needs to be done to sustain and restore a more resilient U.S. seafood sector.

 Witnesses:

  • Ms. Leann Bosarge, Council Member, Gulf of Mexico Fishery Management Council
  • Ms. Cora Campbell, Council Member, North Pacific Fishery Management Council
  • Dr. Paul Doremus, Deputy Assistant Administrator of Operations, National Oceanic and Atmospheric Administration
  • Mr. Phil Anderson, Chair, Pacific Fishery Management Council

*Witness list subject to change

Hearing Details:

Wednesday, July 29, 2020
10:00 a.m.
Full Committee Hearing

This hearing will take place in the Russell Senate Office Building 253. Witness testimony, opening statements, and a live video of the hearing will be available on www.commerce.senate.gov.

*In order to maintain physical distancing as advised by the Office of the Attending Physician, seating for credentialed press will be limited throughout the course of the hearing. Due to current limited access to the Capitol complex, the general public is encouraged to view this hearing via the live stream.

**Witness list updated 7/28/2020

Kick Starting Entrepreneurship and Main Street Economic Recovery

House Small Business Committee News - Wed, 07/29/2020 - 10:00am
The Committee on Small Business Subcommittee on Rural Development, Agriculture, Trade, and Entrepreneurship will hold a hybrid hearing entitled “Kick Starting Entrepreneurship and Main Street Economic Recovery.” The hearing is scheduled to begin at 10:00 AM (EST) on Wednesday, July 29, 2020 and will take place in room 2360 of the Rayburn House Office Building. Members who wish to participate remotely may do so via Cisco Webex.

The hearing will allow members to learn more about why the COVID-19 pandemic is a unique challenge for rural economies. Further, it will examine what worked and did not work to encourage rural development and entrepreneurship during and after the Great Recession, and how these lessons can be applied to the current crisis.
 

To view a livestream of the hearing, please click here. 

Hearing Notice 

Hearing Memo 

Witnesses 






Cantwell Slams Trump Administration for Rushing to Approve Pebble Mine Despite Grave Risk

TV Quality Video | Audio | Transcripts

Cantwell on Pebble Mine: “Let the science lead… NOAA is not sticking up for the science” 

3,560 acres of wetlands and waters, 81 miles of streams at risk of being permanently destroyed 

Fisheries sector makes up 60% of Washington state maritime economy

WASHINGTON, D.C. – In today’s Senate Commerce Committee hearing, Ranking Member Maria Cantwell (D-WA) slammed the Trump administration for ignoring more than a decade of scientific analysis on the devastating impacts the proposed Pebble Mine will have on Alaska’s Bristol Bay salmon fishery. Cantwell has been vocal about the disaster that the Pebble Mine would bring to the Pacific Northwest, and she has repeatedly criticized various members of the administration for downplaying the threat of the mine. 

“Instead of focusing on getting recovery dollars out the door to protect the seafood sector, the administration is paving the way towards permitting the Pebble Mine,” Ranking Member Cantwell said in today’s hearing. “It is beyond unconscionable that the administration continues to threaten the largest salmon fishery in the world instead of focusing on the catastrophic failure that we are seeing because of the pandemic. This is like a one, two gut punch to the industry…So as I have said many times, we must let science lead, and the administration is not listening to science and NOAA is not sticking up for the science.”

The Pebble Mine threatens to permanently damage the Bristol Bay watershed, the 40-60 million salmon that return to it every year, and the fishermen and industries that rely on Bristol Bay salmon. A three-year study by the Environmental Protection Agency released in 2014 found that the mine as proposed would result in irreparable harm to Bristol Bay salmon and the fisheries that depend on them. This year, EPA Region 10 found that the mine even in the course of normal, safe mine operations, would destroy 3,560 acres of wetlands, 55 acres of lakes and ponds, 81 miles of streams and 11 acres of marine waters.

The seafood sector is the cornerstone of the 30 billion dollar maritime economy in Washington state. Fisheries and fishery related businesses, such as commercial fishing, seafood processing, shipbuilding, and gear manufacturing, make up 60 percent of Washington’s maritime economy, which as a whole supports over 146,000 jobs.

In her Q&A with the witnesses at the hearing, Cantwell asked Mr. Phil Anderson, Chair of the Pacific Fishery Management Council, what the Pacific Northwest and the U.S. maritime economy at large stands to lose from the impacts of the Pebble Mine. He responded, “The project, from some of the information I’ve read from the Army Corps of Engineers…from a fishery management perspective, and a harvesting perspective, and businesses that are dependent on renewable resources, this is a huge concern to those of us here in the Pacific Northwest.”

In her questioning with Dr. Paul Doremus, Deputy Assistant Administrator of Operations at NOAA, Cantwell criticized Neil Jacobs and NOAA for their lack of review of Pebble Mine’s impact saying, “Well I want you to hear that NOAA hasn’t fulfilled its role, Mr. Jacobs hasn’t fulfilled his role, and there’s a lot at stake.”

Ranking Member Cantwell has led the fight to protect Alaska’s Bristol Bay, one of the largest salmon fisheries in the world. In October of 2017, Cantwell and other members of the Washington state congressional delegation urged President Trump to listen to Washington fishermen and businesses before removing protections from Bristol Bay. In May 2018, Cantwell called on the Trump administration to hold public meetings in Washington state on the proposal and increase transparency for the permitting process. In July 2019, Cantwell slammed the Trump administration’s decision to withdraw protections for Bristol Bay. And just this month, Cantwell criticized an environmental analysis released by the Trump administration that could pave the way for approval of the proposed Pebble Mine.

A video of Ranking Member Cantwell’s opening statement can be found HERE and audio HERE.

A video of Cantwell’s Q&A with witnesses can be found HERE and audio HERE.

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Committee Announces Hearing on Oversight of the FTC

WASHINGTON – U.S. Sen. Roger Wicker, R-Miss., chairman of the Committee on Commerce, Science, and Transportation, will convene a hearing titled, “Oversight of the Federal Trade Commission,” at 10:00 a.m. on Wednesday, August 5, 2020. The hearing will provide members an opportunity to examine policy issues before the Federal Trade Commission (FTC) and review the agency’s ongoing activities and proceedings. 

Witnesses:

  • The Honorable, Joe Simons, Chairman, Federal Trade Commission
  • The Honorable Noah Phillips, Commissioner, Federal Trade Commission
  • The Honorable Rohit Chopra, Commissioner, Federal Trade Commission
  • The Honorable Rebecca Slaughter, Commissioner, Federal Trade Commission
  • The Honorable Christine Wilson, Commissioner, Federal Trade Commission 

*Witness list subject to change

Hearing Details:

Wednesday, August 5, 2020
10:00 a.m.
Full Committee Hearing

This hearing will take place in the Russell Senate Office Building 253. Witness testimony, opening statements, and a live video of the hearing will be available on www.commerce.senate.gov.

In order to maintain physical distancing as advised by the Office of the Attending Physician, seating for credentialed press will be limited throughout the course of the hearing. Due to current limited access to the Capitol complex, the general public is encouraged to view this hearing via the live stream.

*Note: All witnesses will participate remotely.

The PACT Act and Section 230: The Impact of the Law that Helped Create the Internet and an Examination of Proposed Reforms for Today’s Online World

U.S. Sen. John Thune, R-S.D., chairman of the Subcommittee on Communications, Technology, Innovation, and the Internet, will convene a hearing titled, “The PACT Act and Section 230: The Impact of the Law that Helped Create the Internet and an Examination of Proposed Reforms for Today’s Online World,” at 10:00 a.m. on Tuesday, July 28, 2020. The hearing will examine the important role of Section 230 in promoting and disseminating speech online, and the history, evolution, and expansion of Section 230’s protections for online platforms. The hearing will provide an opportunity to discuss ways to ensure platforms are accountable for their content moderation practices and what legislative measures, from transparency to accountability tools, can empower consumers online.

 Witnesses: 

  • The Honorable Christopher Cox, Counsel, Morgan, Lewis & Bockius LLP; Director, NetChoice
  • Mr. Jeff Kosseff, Assistant Professor, Cyber Science Department, United States Naval Academy 
  • Mr. Olivier Sylvain, Professor of Law, Fordham University
  • Ms. Elizabeth Banker, Deputy General Counsel, Internet Association  

Hearing Details:

Tuesday, July 28, 2020
10:00 a.m.
Subcommittee on Communications, Technology, Innovation, and the Internet 

This hearing will take place in the Dirksen Senate Office Building 106. Witness testimony, opening statements, and a live video of the hearing will be available on www.commerce.senate.gov.

*In order to maintain physical distancing as advised by the Office of the Attending Physician, seating for credentialed press will be limited throughout the course of the hearing. Due to current limited access to the Capitol complex, the general public is encouraged to view this hearing via the live stream.

GSA’s Proving Ground Program Selects Grid-Interactive Efficient Building Solutions for Evaluation

GSA news releases - Tue, 07/28/2020 - 12:00am
WASHINGTON — The U.S. General Services Administration’s Proving Ground (GPG) program has selected four Grid-interactive Efficient Building (GEB) solutions for testing in GSA facilities. The solutions were chosen in response to GSA’s Request for Information (RFI) seeking building technology and...

Ninth Circuit Deals Mortal Wound to Equitable Restitution Claims Under California Law

WLF Legal Pulse - Mon, 07/27/2020 - 9:00am

Jeffrey Margulies is Partner-in-Charge at the Los Angeles and San Francisco, CA offices of Norton Rose Fulbright US LLP.

Fresh on the heels of a California Supreme Court opinion holding that litigants have no right to a trial by jury in Unfair Competition Law (UCL) cases, the Ninth Circuit has relied on equitable principles to reject a class action plaintiff’s gambit to force a court trial by dismissing her damages claim. The decision in Sonner v. Premier Nutrition Corp., 962 F.3d 1072 (9th Cir. 2020), not only furthers the divide between California state and federal courts regarding the right to jury trial in such cases, it calls into question whether federal courts will even hear many state claims for equitable restitution brought in federal court where damages are available.

We wrote about the stark differences in approach to the right to jury trial in a recent Washington Legal Foundation Legal Backgrounder, which discussed the opinion in Nationwide Biweekly Administration, Inc. v. Superior Court, 9 Cal. 5th 279 (2020). There, the California Supreme Court held that litigants had no right to jury trial under the California Constitution for UCL cases, because claims brought under the law are inherently equitable claims. And, unlike the Seventh Amendment’s requirement that a jury’s decision on legal claims are binding on the court’s equitable findings,  the California preference is for courts to decide equitable claims first, rendering it unnecessary for a jury to decide parallel legal claims based on the same facts.

A mere two months after Nationwide Biweekly, a Ninth Circuit panel issued its opinion in Sonner. There, the plaintiff made a strategic decision to dismiss her claim for damages under the Consumer Legal Remedies Act (CLRA), leaving only equitable claims for restitution under the CLRA and UCL to be decided by the court. Upon reading the presiding judge’s past rulings, Sonner’s counsel became convinced that the district court was predisposed to rule in his client’s favor. The attorney thus tried to compel a court trial by seeking only equitable restitution (in the same amount and based on the same facts as her damages claim), depriving the defense of its right to trial by jury. The district court agreed with Premier’s argument that California had not abrogated the common-law rule that a plaintiff seeking equitable relief had to demonstrate an adequate remedy at law, and dismissed the remaining claim for equitable restitution under the UCL and CLRA because it deemed the now-dismissed CLRA damages claim as adequate.

On appeal, the parties—and amici, including the California Attorney General—primarily briefed the issue through the lens of California law. Sonner asserted that the UCL’s “cumulative” remedies language reflected the legislature’s view that plaintiffs need not demonstrate absence of an adequate legal remedy. Premier argued that the court could not repeal the common-law equitable rule by implication. The Ninth Circuit panel, however, focused exclusively on federal law, and what the court termed the “threshold jurisdictional question: do federal equitable principles independently apply to Sonner’s equitable claims for restitution or must we, as a federal court, follow only the state law authorizing that equitable remedy?” 962 F.3d at 1076.

As every first-year law student knows, the Erie doctrine requires a federal court exercising diversity jurisdiction to apply the substantive law of the forum state, and looks to whether applying state vs. federal law would be “outcome-determinative.” The question the Ninth Circuit addressed in Sonner was whether, under Erie, a federal court is subject to state rules regarding equitable remedies on state-law claims, or whether the federal common law on equity controlled.

To answer that question, the court looked to a 75-year old precedent, issued seven years after Erie, Guaranty Trust Co. of New York v. York, 326 U.S. 99 (1945). The court found York directly on point and controlling:

Equitable relief in a federal court is of course subject to restrictions: the suit must be within the traditional scope of equity as historically evolved in the English Court of Chancery; a plain, adequate and complete remedy at law must be wanting; explicit Congressional curtailment of equity powers must be respected; [and] the constitutional right to trial by jury cannot be evaded. That a State may authorize its courts to give equitable relief unhampered by any or all such restrictions cannot remove these fetters from the federal courts.

962 F.3d at 1077 (quoting York, 326 U.S. at 105-06, emphasis added by Sonner opinion).

From there, the court concluded that state law cannot “expand a federal court’s equitable powers, even if allowing such expansion would ensure a similar outcome between state and federal tribunals.” Id. at 1078-79. Because the equitable remedy sought by plaintiff was restitution in the exact same amount as her CLRA damages claim, the court held that the CLRA damages claim was an adequate remedy at law. This adequate remedy therefore precluded the plaintiff’s attempt to seek restitution, and required dismissal since she had dismissed her damages claim. Id. at 1081.

The court then put a stake through plaintiff’s attempt to amend her complaint to replead her CLRA damages claim after her gambit failed. It noted that the district court did not commit error in refusing the amendment where the dismissal occurred on the eve of trial, and the district court had warned plaintiff when she dismissed the damages claim that she could not amend to reallege damages if her equitable claims were subsequently dismissed because it “would be unfair, prejudicial, and an affront to the judicial system.” Id. at 1082.

If Sonner survives an anticipated petition for rehearing or rehearing en banc, the opinion will have a profound impact on litigating equitable restitutionary claims in federal court, with the exact opposite result from California state-court litigation. As we discussed in the Legal Backgrounder, a case with equitable and legal claims based on the same set of operative facts filed in state court would likely be tried mostly to the court, based on the preference in California for equitable claims to be tried first. The court’s finding would be binding on legal claims based on the same facts. Since restitution under California law is often equivalent to (if not more limited than) compensatory damages, in cases brought in federal court under diversity jurisdiction, defendants are likely to deluge plaintiffs with motions to dismiss equitable claims for restitution under the CLRA and UCL. Defendants will reason that the plaintiffs have adequate remedies at law in available damages claims, regardless of whether those claims are pleaded.

The post Ninth Circuit Deals Mortal Wound to Equitable Restitution Claims Under California Law appeared first on Washington Legal Foundation.

Categories: Latest News

GSA and U.S. District Court for the Northern Mariana Islands Open New Federal Courthouse

GSA news releases - Mon, 07/27/2020 - 12:00am
Marianas Management Corporation Constructed New, Modern Facility SAIPAN, Northern Mariana Islands – The U.S. General Services Administration (GSA) and the U.S. District Court announce the opening of the new courthouse for the U.S. District Court of the Northern Mariana Islands on Monday July 27,...

Technology Modernization Fund Board Awards New Round Of Project Funding

GSA news releases - Mon, 07/27/2020 - 12:00am
WASHINGTON – Today, the Technology Modernization Fund (TMF) Board announced a  $15 million award to modernize the Collections platform for the United States Department of Homeland Security (DHS) Customs and Border Protection (CBP). This project will help CBP improve customs enforcement, revenue...

WLF Urges Seventh Circuit To Reverse Judgments Imposing Injury- And Causation-Free Tort Liability

WLF Legal Pulse - Fri, 07/24/2020 - 11:53am

“With the conventional legal conceptions of injury and causation set aside, a company can be shaken down in the courtroom for almost anything.”
—Corbin K. Barthold, WLF Senior Litigation Counsel

Click here for WLF’s brief.

(Washington, DC)—Washington Legal Foundation today filed an amicus curiae brief urging the Seventh Circuit to overturn trial-court rulings and jury verdicts that impose massive liability in the absence of fundamental tort elements such as injury and causation.

When they came on the market at the turn of the 20th century, paints containing white lead carbonate pigments were not only perfectly legal, but highly valued. Many decades later, however, scientists became increasingly aware of the dangers of exposure even to small quantities of lead dust. Eventually the sale of lead paint for residential use was banned nationwide.

These cases involve three Wisconsin plaintiffs who were found, during childhood medical exams, to have what is today considered an elevated blood-lead level. Each plaintiff’s blood-lead level would have been considered within the bounds of normalcy fifty years ago, and no plaintiff displays any physical symptoms of illness. Yet the district court allowed the plaintiffs to proceed to a consolidated trial, and it relieved the plaintiffs of the duty to prove injury or causation. The jury awarded multi-million-dollar verdicts against former sellers of lead pigments and lead paint.

In place of the traditional proximate-cause standard, Wisconsin has a set of six public-policy factors. WLF’s brief offers a thorough analysis of how the six factors apply in these cases. As WLF explains, in these cases every one of the six factors warrants reversal. The brief discusses intervening events, such as improvements in public health; unforeseeable events, including changes in Wisconsin law; the unbounded logic of the district court’s rulings; and other factors that bar liability.

The root problems, WLF’s brief contends, are that the plaintiffs cannot show that their elevated blood-lead levels injured them; that they cannot show that any injury was caused by the defendants; and, above all, that they cannot show that the defendants are blameworthy, are at fault, for any injury they might have caused selling products that were helpful and safe by the standards of their day.

Celebrating its 43rd year as America’s premier public-interest law firm and policy center, WLF advocates for free-market principles, limited government, individual liberty, and the rule of law.

The post WLF Urges Seventh Circuit To Reverse Judgments Imposing Injury- And Causation-Free Tort Liability appeared first on Washington Legal Foundation.

Categories: Latest News

The State of U.S. Spectrum Policy

U.S. Sen. John Thune, R-S.D., chairman of the Subcommittee on Communications, Technology, Innovation, and the Internet, will convene a hearing titled, “The State of U.S. Spectrum Policy,” at 10:00 a.m. on Thursday, July 23, 2020. The hearing will examine the Federal Communications Commission’s and National Telecommunications and Information Administration’s role in spectrum management and policymaking. Witnesses will have the opportunity to discuss how the increased demand and competition for licensed and unlicensed spectrum resources have impacted spectrum policies in the United States. 

 Witnesses:

  • Mr. Tom Power, Senior Vice President and General Counsel, CTIA
  • Mr. Mark Gibson, Director of Business Development, CommScope
  • Dr. Roslyn Layton, Visiting Researcher, Aalborg University
  • Mr. Michael Calabrese, Director, Wireless Future Project, Open Technology Institute at New America

*Witness list subject to change

Hearing Details:

Thursday, July 23, 2020
10:00 a.m.
Subcommittee on Communications, Technology, Innovation, and the Internet 

This hearing will take place in the Russell Senate Office Building 253. Witness testimony, opening statements, and a live video of the hearing will be available on www.commerce.senate.gov.

*In order to maintain physical distancing as advised by the Office of the Attending Physician, seating for credentialed press will be limited throughout the course of the hearing. Due to current limited access to the Capitol complex, the general public is encouraged to view this hearing via the live stream.

 

Subcommittee to Hold Hearing on China Challenges

WASHINGTON – U.S. Sen. Dan Sullivan, R-Alaska, chairman of the Subcommittee on Security, will convene a hearing titled, “The China Challenge: Realignment of U.S. Economic Policies to Build Resiliency and Competitiveness,” at 10:00 a.m. on Thursday, July 30, 2020. The hearing will examine topics related to the Chinese Communist Party's unfair trade practices, intellectual property theft, and market manipulation and their harmful impact on U.S. global economic competitiveness.

Witness Panel 1:

  • Dr. Rush Doshi, Director of the Chinese Strategy Initiative, The Brookings Institution
  • Mr. Michael Wessel, Commissioner, U.S. - China Economic and Security Review Commission

Witness Panel 2:

  • The Honorable Keith Krach, Under Secretary for Economic Growth, Energy, and the Environment, U.S. Department of State
  • The Honorable Nazak Nikakhtar, Assistant Secretary for Industry and Analysis, International Trade Administration, U.S. Department of Commerce

*Witness list subject to change

Hearing Details:

Thursday, July 30, 2020
10:00 a.m.
Subcommittee on Security

This hearing will take place in the Russell Senate Office Building 253. Witness testimony, opening statements, and a live video of the hearing will be available on www.commerce.senate.gov

*In order to maintain physical distancing as advised by the Office of the Attending Physician, seating for credentialed press will be limited throughout the course of the hearing. Due to current limited access to the Capitol complex, the general public is encouraged to view this hearing via the live stream.

**Witness panel updated 7/28/2020 

Committee Announces Hearing on U.S. Seafood Industry

WASHINGTON – U.S. Sen. Roger Wicker, R-Miss., chairman of the Committee on Commerce, Science, and Transportation, will convene a hearing titled, “Building a Stronger and More Resilient Seafood Sector,” at 10:00 a.m. on Wednesday, July 29, 2020. This hearing will examine the national and regional impacts of COVID-19 on the seafood industry and the effects of the fish disaster funding provided in the CARES Act. Witnesses will have the opportunity to discuss the work that needs to be done to sustain and restore a more resilient U.S. seafood sector.

Witnesses:

  • Ms. Leann Bosarge, Council Member, Gulf of Mexico Fishery Management Council
  • Ms. Cora Campbell, Council Member, North Pacific Fishery Management Council
  • Dr. Paul Doremus, Deputy Assistant Administrator of Operations, National Oceanic and Atmospheric Administration
  • Mr. Phil Anderson, Chair, Pacific Fishery Management Council

*Witness list subject to change

Hearing Details:

Wednesday, July 29, 2020
10:00 a.m.
Full Committee Hearing 

This hearing will take place in the Russell Senate Office Building 253. Witness testimony, opening statements, and a live video of the hearing will be available on www.commerce.senate.gov.

*In order to maintain physical distancing as advised by the Office of the Attending Physician, seating for credentialed press will be limited throughout the course of the hearing. Due to current limited access to the Capitol complex, the general public is encouraged to view this hearing via the live stream.

**Witness list updated 7/28/2020

21st Century SBA: An Analysis of SBA’s Technology Systems

House Small Business Committee News - Wed, 07/22/2020 - 1:00pm
The Committee on Small Business will meet for a hybrid hearing entitled, “21st Century SBA: An Analysis of SBA’s Technology Systems." The hearing is scheduled to begin at 1:00 PM (EST) on Wednesday, July 22, 2020, and will take place in room 2360 of the Rayburn House Office Building. Members who wish to participate remotely may do so via Cisco WebEx.

During the Coronavirus pandemic, the Small Business Administration experienced an unprecedented level of applicants for the Paycheck Protection Program and the Economic Injury Disaster Loan programs. The influx inundated SBA’s systems leading to backend system crashes, portals operating slowly, and a glitch that led to a data breach of applicants’ personal information. The Committee will meet to examine SBA’s response to the technological issues that borrowers and lenders faced when applying for the economic relief programs. 
 

To view a livestream of the hearing, please click here. 

Hearing Notice 

Hearing Memo 

Witnesses 

Mr. Guy Cavallo
Deputy Chief Information Officer
U.S. Small Business Administration
Washington, DC




Update: Third Circuit Vacates Trial Court’s U.S. v. Sabre Corp. Merger Opinion

WLF Legal Pulse - Wed, 07/22/2020 - 11:15am

On May 26, our Featured Expert Contributor on the Justice Department’s antitrust activity, Anthony W. Swisher and his Baker Botts L.L.P. colleague Jody Boudreault discussed the District of Delaware’s U.S. v. Sabre Corp. opinion and DOJ’s motion asking the Third Circuit to vacate that ruling as moot. After competition authorities in the United Kingdom challenged Sabre’s merger with Farelogix, Sabre terminated the acquisition.

In its motion to the Third Circuit, DOJ explained that the district court decision “if not vacated—could have an outsized effect on cases involving competition in the digital economy, where it is not uncommon for multi-sided platforms to face competition from one-sided rivals.”

On July 20, a three-judge panel of the Third Circuit granted DOJ’s motion to vacate, citing Sabre’s decision to forego the merger. Notably, the order included the following language:

“We also express no opinion on the merits of the parties’ dispute before the District Court. … As such, this Order should not be construed as detracting from the persuasive force of the District Court’s decision, should courts and litigants find its reasoning persuasive.”

Swisher and Boudreault, anticipating the Third Circuit’s decision, concluded their post with a similar point: “Even if they are successful, however, the decision provides a roadmap of arguments available to future litigants.”

The post Update: Third Circuit Vacates Trial Court’s <em>U.S. v. Sabre Corp.</em> Merger Opinion appeared first on Washington Legal Foundation.

Categories: Latest News

Executive Session

U.S. Sen. Roger Wicker, R-Miss., chairman of the Senate Committee on Commerce, Science, and Transportation, will convene an executive session on Wednesday, July 22, 2020 at 9:45 a.m. in Dirksen Senate Office Building G50 to consider the following legislative measures and nominations:

Agenda: 

  1. S. 933, Bolstering Long-Term Understanding and Exploration of the Great Lakes, Oceans, Bays, and Estuaries Act (BLUE GLOBE) Act, Sponsors: Sens. Sheldon Whitehouse, D-R.I., Brian Schatz, D-Hawaii
  1. S. 1730, Living Shorelines Act of 2019, Sponsors: Sens. Kamala Harris, D-Calif., Richard Blumenthal, D-Conn., Edward Markey, D-Mass., Tammy Baldwin, D-Wis.
  2. S. 3152, Data Mapping to Save Moms’ Lives Act, Sponsors: Sens. Jacky Rosen, D-Nev., Deb Fischer, R-Neb., Todd Young, R-Ind., Brian Schatz, D-Hawaii, Edward Markey, D-Mass., Richard Blumenthal, D-Conn.
  3. S. 3771, Fundamentally Understanding the Usability and Realistic Evolution (FUTURE) of Artificial Intelligence Act of 2020, Sponsors: Sens. Maria Cantwell, D-Wash., Todd Young, R-Ind., Edward Markey, D-Mass
  4. S. 3891, Advancing Artificial Intelligence Research Act of 2020, Sponsors: Sens. Cory Gardner, R-Colo., Gary Peters, D-Mich., Roger Wicker, R-Miss.
  5. S. 3958, Expedited Delivery of Airport Infrastructure Act of 2020, Sponsors: Sens. Todd Young, R-Ind., Kyrsten Sinema, D-Ariz., Ted Cruz, R-Texas
  6. S. 4144, Sport Fish Restoration and Recreational Boating Safety Act of 2020, Sponsors: Sens. Roger Wicker, R-Miss., Maria Cantwell, D-Wash.
  7. S. 4162, Airport Infrastructure Readiness (AIR) Act of 2020, Sponsors: Sens. Deb Fischer, R-Neb., Kyrsten Sinema, D-Ariz., Ted Cruz, R-Texas, Tammy Duckworth, D-Ill.
  8. Joel Szabat, of Maryland, to be Under Secretary of Transportation for Policy, U.S. Department of Transportation
  9. Michael O’Rielly, of New York, to be a Member of the Federal Communications Commission
  10. Michael Walsh, Jr., of Virginia, to be General Counsel of the U.S. Department of Commerce
  11. Mary Toman, of California, to be Under Secretary of Commerce for Economic Affairs, U.S. Department of Commerce
  12. Coast Guard Nominations  

*Agenda subject to change

Executive Session Details:

July 22, 2020
9:45 a.m.
Full Committee
Dirksen Senate Office Building G50

A live video of the markup and additional information will be available at www.commerce.senate.gov 

*In order to maintain physical distancing as advised by the Office of the Attending Physician, seating for credentialed press will be limited throughout the course of the hearing. Due to current limited access to the Capitol complex, the general public is encouraged to view this hearing via the live stream.

Cantwell Bill Promoting Development and Understanding of Artificial Intelligence Passes Commerce Committee

TV Quality Video | Audio | Transcript

WASHINGTON, D.C. – In today’s executive session, the Senate Committee on Commerce, Science, and Transportation passed legislation introduced by U.S. Senators Maria Cantwell (D-WA), Todd Young (R-IN), and Ed Markey (D-MA) that promotes the continued development of artificial intelligence (AI) technology. The bill, known as the Fundamentally Understanding the Usability and Realistic Evolution of Artificial Intelligence Act of 2020 – or FUTURE of AI Act – establishes a federal advisory committee to examine the economic opportunities and evolving legal framework that AI technologies present and develop recommendations to address its use in many aspects of American life.

Ranking Member Cantwell said during the executive session today, “Today in an era of rapidly evolving technology, it is more important than ever that the U.S. remains a global leader in this sector.”

“Artificial Intelligence has the ability to drastically boost our economy,” said Senator Todd Young. “As Americans continue to interact with this technology every day, and as its capabilities expand, it’s important that we study and prepare for AI’s continued use in our society.”

“It’s clear that artificial intelligence has immense potential and is already transforming our economy and society,” said Senator Edward J. Markey. “We cannot be in the dark about how this new technology will impact our workforce, our privacy, and our lives. The FUTURE of AI Act convenes experts to chart a responsible path forward, and I’m pleased to see this legislation advancing in Congress.”

The FUTURE of AI Act directs the Secretary of the Commerce Department to create an advisory committee tasked with submitting recommendations to Congress within 18 months on how the government and business can work together to address artificial intelligence concerns in several key areas including: 

  • Potential growth, restructuring, and other changes for the U.S. workforce that result from adoption of AI, including potential actions to train and skill workers for an AI workplace
  • Protecting the privacy rights of individuals as AI continues to grow
  • Promoting a climate of innovation to ensure global competitiveness for American companies developing AI technologies
  • Supporting the development and application of unbiased AI
  • Examining the use of AI in law enforcement and security

The AI advisory committee will pull from a wide array of business sectors and perspectives. The committee will be comprised of civil liberties groups, labor groups, research institutions and universities, technology companies, the manufacturing sector, data scientists, and federal agency officials, among others.

The section-by-section of the bill can be found HERE.

The full text of the bill can be found HERE.

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The Protean Progressive Free Speech Clause

WLF Legal Pulse - Tue, 07/21/2020 - 10:26am

Felix Frankfurter was a man of the Left. He wrote often for The New Republic, and he helped found the ACLU. He lobbied the United States to recognize the Soviet Union during the Russian Civil War. He was the foremost proponent of a new trial for the anarchists Sacco and Vanzetti.

While Frankfurter was agitating and organizing as a professor at Harvard Law School in the 1910s and ’20s, the Supreme Court was striking down state licensing requirements, consumer-protection rules, and wage-and-hour laws. Like many on the Left of that day, therefore, Frankfurter believed in judicial restraint. Justice Louis Brandeis captured the contemporary progressive attitude in a 1932 dissent. “It is one of the happy incidents of the federal system,” he wrote, “that a single courageous state may, if its citizens choose, serve as a laboratory” and “try novel social and economic experiments without risk to the rest of the country.”

Brandeis’s great ally on the court was Justice Oliver Wendell Holmes, Jr. It was not progressive principle that made Holmes a restrained judge; it was a bullet in the neck in the Civil War. “What damned fools people are who believe things,” he once told the socialist professor Harold Laski. Although he said it of a pacifist in a case before the court, the line captures how he saw most things, including judging. Oddly enough, the idealistic Frankfurter worshiped the cynical Holmes. A justice willing to uphold social legislation he thought pointless, even ridiculous, was in Frankfurter’s eyes the pattern of a sound judge. This might explain why Frankfurter’s own judicial principles would remain fixed as times changed.

And change they did. Frankfurter became a justice in 1939. The next year, on behalf of an 8-1 majority of the court, he declared that the First Amendment has nothing to say about the expulsion from school of Jehovah’s Witnesses who refuse to pledge allegiance to the flag of the United States. Local governments must, Frankfurter thought, have the “authority to safeguard the nation’s fellowship.” Just three years later, however, in West Virginia State Board of Education v. Barnette (1943), the court voted 6-to-3 to overturn Frankfurter’s opinion. “If there is any fixed star in our constitutional constellation,” Justice Robert Jackson wrote for the majority, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Now in dissent, Frankfurter fumed about judges who write their “private notions of policy into the Constitution.” “It must be remembered,” he wrote, quoting Holmes, “that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.” True, but not a very compelling point in a case about forcing schoolchildren to swear an oath against their (and their parents’) will.

Shortly after the First World War, in fact, Holmes had started to take a more expansive view of the Free Speech Clause. “When men have realized that time has upset many fighting faiths,” he explained in dissent in Abrams v. United States (1919), “they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas.” When it came to free speech, Holmes could use his old philosophical skepticism to justify a new judicial assertiveness. His pivot was driven in part by distress at the persecution Frankfurter and Laski suffered at Harvard for their radical views. Yet Frankfurter himself remained in awe of the Holmes who told Laski, just a year after Abrams, that if the people want to go to hell, a judge’s job is to help them along.

Frankfurter clashed often with a group of justices, led by William Brennan and William Douglas, who placed little stock in text, precedent, or history. This activist wing became increasingly dominant. Frankfurter’s hour was past—or, rather, had never come. When Brennan, writing for the court in Baker v. Carr (1962), overturned a raft of precedents on the way to declaring that legislative redistricting decisions can be challenged in court, Frankfurter issued a long and bitter dissent, suffered a stroke, and retired.

Frankfurter complained that the court’s hard left produced opinions that were “shoddy” and “result-oriented.” He might have added “anarchic.” In 1968 a man wore a jacket emblazoned with the words “F*** the Draft” in a courthouse. He was arrested and prosecuted for “disturbing the peace . . . by offensive conduct.” In his final months on the court, John Marshall Harlan wrote the decision in the man’s appeal. An heir, in many ways, of Holmes, Brandeis, and Frankfurter, Harlan set a trend for many later conservative justices by “evolving” on the bench. His opinion in Cohen v. California (1971) declared the protester’s conviction inconsistent with the First Amendment.

Because the offensive-conduct statute applied throughout the state, the defendant, Harlan concluded, was not “on notice” that “certain kinds of otherwise permissible speech or conduct would . . . not be tolerated in certain places.” Harlan dodged the key question—what counts as offensive conduct in a courthouse—by denying that the law can turn on context or matters of degree. Having thus oversimplified the case (and infantilized every citizen), he was free to ask simply whether a state may ban the use of expletives in public. At that point he could at least have knocked down his straw man with a straightforward “no”. Instead Harlan offered a paean to vulgar relativism, a tract now remembered mainly for the assertion that “one man’s vulgarity is another’s lyric.” As Robert Bork noted in The Tempting of America, that statement is a challenge to all laws on all subjects. “After all, one man’s larceny is another’s just distribution of goods.”

Does Cohen remain a totem of left-wing free-speech jurisprudence? The court’s progressives seem to have reversed gear. Take the court’s decision earlier this month in Barr v. American Association of Political Consultants Inc. The Telephone Consumer Protection Act bans almost all robocalls to cell phones. The Act contains an exception for robocalls that seek to collect a debt owed to the federal government. At issue in Barr was whether this carveout violates the First Amendment. While acknowledging that robocalls are widely despised, the court concluded, by a vote of 6-to-3, that the government nonetheless may not engage in content-based discrimination, baselessly favoring some robocalls over others.

Writing for himself and Justices Ginsburg and Kagan, Justice Breyer argued in dissent that robocalls are not vital to core “First Amendment objectives,” such as protecting people’s ability “to speak or to transmit their views to government.” Congress, in Breyer’s view, should have greater leeway to impose “ordinary regulatory programs” that pose “little threat” to the exchange of thought. Maybe so—but this is not the outlook on display in Cohen. Say the government prohibits writing political statements on tax returns. According to the Barr dissent, “it is hard to imagine” that such a rule would “threaten political speech in the marketplace of ideas.” Don’t count on the wing of the court that let a man say “F*** the Draft” in a courthouse in 1968 to let you say “F*** Taxes” on a tax form today.

Why has the court’s left wing lost its enthusiasm for free-speech absolutism? One factor is the emergence on the court of a right wing that upholds the free-speech rights of corporations. No longer the only ones patrolling constitutional boundaries, the progressives are more careful about loose rights talk.

Another factor might soon come to the fore. If the Left conquers American culture, sheds liberal values, and becomes a force for conformity, will the progressive justices shift in turn? In the case of a child expelled from school for refusing to acknowledge, and renounce, her privilege, would they chastise the wielders of power and discuss the “fixed star in our constitutional constellation”? Or would they gain a new understanding of Justice Frankfurter’s belief in the value of making parents accept “the training of [their] children in good citizenship”? In the appeal of a man charged with offensive conduct for wearing, amid a hostile crowd, a jacket maligning political correctness, would they use Cohen to lecture the easily offended about simply “avert[ing] their eyes” to avoid further “bombardment of their sensitivities”? Or might they suddenly see wisdom in the Cohen dissenters’ claim that “absurd and immature antic[s]” are conduct rather than speech?

Also published by Forbes.com on WLF’s contributor page.

The post The Protean Progressive Free Speech Clause appeared first on Washington Legal Foundation.

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