This course considers the constitutional, statutory, and other legal limitations on what government agencies can do and how they can do it. What constraints govern the power of agencies to make law, decide cases involving private parties, and investigate citizens? How much "due process" must government agencies give citizens whose lives they affect; what limits has Congress imposed on the procedures for agency decision making; and to what extent can people call on courts to check what they regard as abuses of governmental power? These are among the questions addressed in the course, which draws together problems ranging from the legitimacy of New Deal institutions to the dramatic procedural innovations of recent federal administrations and problems created by renewed Congressional interest in the details of agency decision making.

This course is designed to introduce you to the core institutions and processes of the modern administrative state.  You will come to understand the tremendous power exercised by administrative agencies as well as the significant constraints under which they operate.  You will learn the procedures governing the key categories of administrative action; the doctrine governing judicial review of administrative action; and non-judicial mechanisms of agency control within the Constitution’s separation-of-powers framework.

Learning Goals: By the end of the semester, you should be able to:

(1)  Identify the legal framework (statutory, constitutional, doctrinal) that applies to a particular issue of administrative action;

(2)  Apply the relevant legal framework to a given set of facts; and

(3)  Evaluate the merits of the legal framework against a variety of normative goals.

You should also (4) be conversant in contemporary debates about the administrative state and be able to articulate and justify your views.  

Virtually all areas of law today involve a substantial element of administrative law.  This course introduces you to the role of administrative agencies and how law and political factors shape their powers and work.  This includes materials on how they are empowered and constrained by the Constitution, Congress, presidents, and the courts.  We also study ways in which agencies generate law and develop policies.  This class coverage includes, among other topics, materials on citizens’ abilities to petition, shape, and litigate over agency actions; changing views of presidents’ roles and powers over agencies; and statutory factors and doctrine shaping judicial review of agency law interpretation, reasoning, responsiveness, policy shifts, and engagement with science and facts.   

The course’s goal is to familiarize students with the challenges consumer protection agencies face. The course will focus on the Federal Trade Commission, the Consumer Financial Protection Bureau, and the Food and Drug Administration. The course will require significant readings about contemporary policy issues, and those readings will be the launching point for in-class discussions. Many of the readings will come from the Federal Register and the Administrative Conference of the United States; others will critique the work of one or more of the consumer protection agencies. During seminars, students will often engage in role-playing: some students will take on the role of senior agency officials, others will be lawyers for consumer groups that seeks to force the agency to take certain actions (regulatory or enforcement), or lawyers representing a company or trade association opposing regulation or to stave off enforcement actions.

Students who take this course will better understand stakeholder politics; federal legislative, regulatory, and enforcement processes; and the advocacy skills needed to achieve policy outcomes in the interrelated fields of technology, telecommunications, and media (“TTM”). Students will gain hands-on experience practicing technology advocacy. The course first reviews key issues in technology policy and advocacy, such as competition, content moderation, net neutrality, privacy, AI & bias, and cybersecurity.

Armed with the basics of current technology policy issues, students then learn advocacy tools to “make” technology policy. Students will review and draft collateral materials used for technology policy advocacy, including white papers, talking points, comments, “op/eds,” earned media coverage, and more, gaining an appreciation for the differences from, and complementary relationship with, traditional legal materials and legal practice. Students will be introduced to the legislative process (committee hearings and markups, bicameral action, budget procedure); independent agency rulemaking and adjudication (comments, ex parte presentations, Administration and congressional input); relevant enforcement proceedings (Department of Justice and Federal Trade Commission merger review); and related advocacy in the courts (amicus briefs).

This is a skill-intensive course with writing assignments, workshops, presentations, peer support, and simulations. It will have a final assessment with a written and oral component. There are no prerequisite courses required. Classes will incorporate pre-class preparations and in-class skill-building exercises.

This course covers the major federal legislation in the field of antitrust law, with a primary focus upon governmental efforts to promote competition, including Sections 1 and 2 of the Sherman Act, and Section 7 of the Clayton Act. Emphasis is placed upon the growing role of economic analysis and other modern trends in judicial interpretation, with an emphasis on understanding the means by which courts determine whether unilateral and collaborative business conduct is pro-competitive or anticompetitive, regardless of the particular statutory provision at issue.

This class will serve as a basic survey and introduction to U.S. antitrust law, including coverage of recent critiques and policy developments.  As such, the reading will include the traditional case law, but also some examples of proposed legislation and contemporary advocacy material from policy activists.  Thus, we will learn the basics of antitrust doctrine but also seek to understand the merits (or lack thereof) of contemporary critiques and proposed policy responses. 

This class will serve as a basic survey and introduction to U.S. antitrust law, covering both the historical evolution of antitrust policy objectives and the modern antitrust case law. The course readings will include a narrowed selection of traditional case law as well as historical analyses, scholarly commentaries, and contemporary materials. The objective of this course will be not just to learn the basics of antitrust doctrine but to understand and assess contemporary critiques and proposed policy responses to the current state of that doctrine.

Please see the Communications and Technology Law Clinic (IPR) website for more detailed information about the program.

For registration-specific supplemental materials, please see the Communications and Technology Law Clinic (IPR) PDF.

For information about clinic registration generally, please see the Clinic Registration Handbook.

This course will examine the historical, current, and prospective legal and regulatory treatment of communications services, devices, service providers, and platforms. Focusing on current regulatory and policy developments, we will cover issues concerning telephone companies, wireless carriers, Internet application and service providers, device manufacturers, and broadband network operators. The emphasis of the course will be on the rules, policies, and processes of the Federal Communications Commission (“FCC”), but we also will discuss the roles of Congress, courts, and the Executive Branch. Once armed with a firm background in existing statutory and regulatory requirements, students will explore current legal and policy questions regarding communications law. In particular, our focus this semester will be on the structure and functions of the FCC, mobile broadband networks; recent debates surrounding the regulation of broadband networks and online platforms; and some special “hot topics.”

This course will survey the historical, current, and prospective legal and regulatory treatment of communications services, devices, service providers, and platforms. We will examine legal and regulatory issues regarding telecommunications services, mobile communications, broadcasting, cable, and broadband networks. The emphasis will be on the rules, policies, and processes of the Federal Communications Commission (“FCC”), but we will also discuss the roles of Congress, courts, the Executive branch, states, and localities.  Armed with a firm background in statutory and regulatory models, students will explore current and future legal and policy questions regarding communications law, considering the challenges technological convergence and innovation pose for existing regulatory frameworks in areas such as competition, spectrum policy, broadband subsidy, and net neutrality.

Learning Objectives:

• Understand the regulatory framework for the communications sector, including the statutory framework for the FCC’s regulatory authority.
• Understand the roles, as well as the institutional competence and limitations, of the other key players in communications law and policy – Congress, the Executive branch, courts, states, and localities.
• Deepen students’ understanding of major communications policy topics, so that they can identify key concepts and attendant arguments in play.
• Analyze communications issues in an interdisciplinary manner, recognizing the intersection of economics, technology, policy, and law. 
• Practice skills useful to participating in the regulatory advocacy process by drafting a short, mock ex parte letter to the FCC on a designated issue.  Skills practiced will include, among others, making legal arguments, discussing policy rationales, and appealing to policymakers’ agendas.

The advent of the Internet has spawned massive leaps in technology and the way Americans use communications services to reach that technology. This course examines how courts, legislatures, and regulatory agencies react to constant change in communications technologies. We will focus on specific technological advances to explore the way legal, economic, social, and technological forces shape and are harnessed by legal systems faced with challenges to the status quo. The course will draw on leading communications law cases, statutes, and FCC and FTC actions. Students will explore the legal and lobbying battles raging today in Washington and across the world that are fueled by technological change, in areas such as net neutrality, privacy, broadband subsidy, competition, and spectrum policy. We will try to focus in particular on questions currently before the courts, the FCC and Congress. Note that the focus of readings and in-class discussion is on physical communications technology, not on policies relating specifically to social media sites (although such topics are not out-of-bounds for paper topics).The goal is to deepen each student's understanding of major communications law topics, to determine if a comparison of these topics reveals a set of common legal, policy, and political reactions to technological change, and to provide future policymakers with the tools to respond to change more effectively.

The class will meet for two hours once per week. Grades will be based on class participation (25%) and a final paper/oral presentation (75%). There are no course prerequisites. While there is overlap with Communications Law and Policy on several issues, we cover different issues in total. For students with no communications law background, we will cover the basic background on the law and policy needed to understand the issues addressed.

Learning Objectives:

• Deepen each student's understanding of major communications policy topics in dispute.
• Determine if a comparison of these topics reveals a set of common legal, policy, and political reactions to technological change.
• Provide future policymakers with the tools to respond to change more effectively.
• Provide insight to the role legal constraints play in policy debates and policy plays in legal challenges.
• Improve oral and written advocacy skills through writing and presenting an advocacy white paper.

This course will explore the legal issues that judges, legislators, prosecutors, and defense attorneys confront as they respond to the recent dramatic increase in computer-related crime. In particular, we will consider how crimes online challenge traditional approaches to the investigation, prosecution, and defense of crime that have evolved from our experience with crimes in physical space. Topics will include: the Fourth Amendment online, the law of electronic surveillance, computer hacking and other computer crimes, the First Amendment and the Internet, and special issues in transnational and national security investigations.

This course focuses primarily on the First, Fifth, and Fourteenth Amendments (free speech, due process, and equal protection) and the role of the Supreme Court as ultimate interpreter and guardian of the Bill of Rights.

Note for Professor Barnett's Fall section: As a way to understand the structure of current doctrines, Professor Barnett’s course will stress how and why the doctrines evolved from the Founding through the Civil War, Reconstruction, the Progressive Era, the New Deal, the Warren and Rehnquist Courts to the Roberts Court today. The course will also stress the effect that slavery had on the original Constitution and the Reconstruction Amendments. Coverage will include the Second and Ninth Amendments. Professor Barnett's section will consist of a 3-hour unit consisting of two 85 minute class sessions and a 1-hour unit consisting of video presentations on the theory and practice of originalism that students can view at their convenience at any time before or during the semester.  Internet access on any device is not allowed during class; all laptop use is disallowed in Professor Barnett's course (unless necessary to conduct Zoom instruction).  

Learning goals for Professor Spann's section

The primary goal of the course is to teach students how to manipulate the doctri­nal rules and underlying policy consid­era­tions that govern the topics in the course, and to get students to confront the norma­tive implications raised by such vast amounts of doctrinal indetermi­nacy, especially for the law’s claim of neutrality toward subordinated groups. 

Congress shall make no law . . . abridging the freedom of speech” commands the First Amendment.  This course explores how that charge has played out in practice by analyzing some of the most challenging free speech issues of our day, with a particular focus cases involving competing First Amendment rights.  Topics include: incitement, threats, hate speech, protests, boycotts, aiding and abetting, campus speech, coercion and/or retaliation by public officials, jawboning, doxxing, anonymous speech, compelled speech, associational rights, the rights of “platforms,” and speech about abortion post-Dobbs.  Students will delve into the relevant legal doctrine, as well as its theoretical and analytical underpinnings, while also developing skills as advocates by applying that doctrine to actual cases.  Students will be expected to make meaningful contributions to class discussion.

Our nation's infrastructure abounds in justice failures. Consider: 

• In Flint, Michigan, officials subjected thousands of families to lead-poisoned water. 

• In Puerto Rico, Hurricane Maria crippled an electricity infrastructure long neglected by its government-owned utility, leaving thousands of families without electricity.

• Wildfires in Maui, arising in part from years of neglect by the utility, plantation owners, and government officials, have left thousands homeless.

• Water flooding in coastal Charleston, South Carolina disproportionately affects marginalized communities.   

• Navajos lack reliable electric supply in most of their territory.

Common to each of these situations is economic regulation.One or more public bodies created, encouraged, tolerated, or ignored conditions that allowed private behavior, often business behavior, to produce these adverse outcomes. This course will diagnose the causes and design solutions. Among the big-picture questions:

• In the context of economic regulation, what is economic justice?  

• Does our economic regulation of infrastructural industries produce economic injustice?  If so, with which actors does fault lie?

• Does facially neutral statutory language—bland statutory commands such "just and reasonable rates," "consistent with the public interest," no "undue preference or advantage"—have non-neutral effects?

• Do constitutional principles—such as the protection of private property—affect economic justice?

• How do regulatory procedures, all influenced by conflicting interest groups, affect economic justice outcomes?

• Should economic regulation address justice?  Or should it seek only to improve economic performance, leaving justice to other regulatory agencies or to political processes?

• For all these questions, what roles can lawyers play? 

"Congress shall make no law . . .," the First Amendment commands, "abridging the freedom . . . of the press." But Congress, the Executive Branch, and the courts have promulgated a host of laws governing both print and electronic media. This survey of mass media law explores such current topics as prior restraints on publication, defamation, privacy, newsgathering liability, media liability for unlawful conduct of third parties, compelled disclosure of sources, and access to information. Practical aspects of representing media clients are examined along with public policy implications of existing legal doctrines and proposals for change. Much of the course is discussion-based, and students will be expected to make meaningful contributions to that discussion, with class participation forming the basis for one-fourth of the grade for the semester.

Imagine you are the benevolent dictator of a country, and your population wants a new personal data privacy law. You are then tasked to design such a policy from scratch. This seminar discusses the many relevant decisions policymakers should make when shaping data privacy regimes.

In particular, this seminar covers: (i) what are the economic and non-economic reasons to regulate data privacy; (ii) what different bundles of rights are usually found in different data privacy laws, and how they interact with one another; (iii) the trade-offs involved in adopting a single comprehensive regime versus many sector-specific regimes; (iv) what are enforcement options to ensure that parties follow the laws on the books; and (v) how privacy laws interact with competition, innovation, national security, and other policies.

This seminar will focus on consumer/citizen data privacy laws. It complements rather than substitutes for Information Privacy Law (LAW 342).  The seminar is not a general survey of black letter information privacy law, nor will it cover U.S. Fourth Amendment privacy and other similar topics. Ideally, students should have some prior exposure to privacy/data protection law before enrolling. We will cover the key privacy laws that you need to know in the initial class sessions.

Students will be encouraged to think about law as institutional engineers—that is, thinking critically about whether given legal provisions make sense and help further laws’ stated goals. Data privacy is a field in flux, so class readings will be a mixture of privacy laws from different jurisdictions and academic articles in fields such as law, economics, computer science, and others.

Learning Objectives:

• Exposure to an array of doctrinal, statutory, regulatory, and policy landscapes in privacy law, and the complex interrelationships among them.
• Exposure to privacy compliance considerations that confront both private- and public-sector organizations.
• Awareness of international differences in the treatment of information privacy issues and comparative exposure to European data protection law in particular.
• Refinement of analytical and writing skills.

This course provides an introduction to information privacy law both on the books and on the ground. Topics covered include the common law, constitutional, and statutory foundations of U.S. information privacy law; philosophical bases for privacy protection; first amendment constraints on privacy law; information privacy compliance, enforcement, and regulatory practice; the European approach to privacy and data protection; privacy constraints on law enforcement activities; cybersecurity; and cross-border data flows. Special attention will be paid to issues raised by the information economy.

Learning goals for this course: Critical mastery of the existing doctrinal, statutory, regulatory, and policy landscapes and the complex interrelationships among them; critical mastery of the privacy compliance considerations that confront both private- and public-sector organizations; introduction to European information privacy and data protection law and the relationship between privacy and global information flows.

From net neutrality to spectrum policy to digital equity, telecommunications policy debates play a prominent role in American society. But understanding those debates requires familiarity with the industry’s technological and economic characteristics as well as the governing law. To that end, this course will examine how federal regulation both responded to and shaped industry developments over the past several decades, as technological innovations have transformed how Americans communicate.

In the final classes, we will broaden our focus beyond the telecommunications industry to include “big tech” and the AI industry. Many of today’s proposals for regulating Big Tech have deep—and often overlooked—parallels in the existing regulation of telecommunications providers. We will examine those analogies and discuss what the lessons from telecommunications regulation can teach policymakers as they address the broader tech and emerging AI environment.

Learning Objectives: 

Students should come away from the course with a deep understanding of the law, economics, and technology of the telecommunications industry in particular and network industries in general. They will also gain a rigorous and nuanced understanding of key contemporary debates over net neutrality, spectrum policy, digital equity, and tech company market power.

This course provides an intensive introduction to the General Data Protection Regulation - the EU’s influential comprehensive data protection law. The class will review foundational Articles of the Regulation, background materials, and related EU law developments. The course explores the development of privacy law in the modern democratic state, assesses the strengths and weaknesses of the Regulation including challenges for implementation and compliance, and examines the relationship to other emerging EU digital laws, including the EU AI Act.
Learning Objectives:
The aim of this class is to provide:
 

• A general understanding of the historical and political circumstances that gave rise to the adoption of the GDPR
• A general understanding of the provisions of the General Data Protection Regulation
• A general understanding of current developments related to the GDPR, including the status of the EU-US Data Protection Framework
• A focused understanding of key provisions in the GDPR, including collective actions, data protection impact assessments, algorithmic transparency, the role of supervisory authorities, and the creation of the European Data Protection Board
• A close examination of a few leading GDPR judgments
• An introduction to related legal frameworks, including the Council of Europe Convention 108 (The "Privacy Convention"), the OECD Privacy Guidelines, and the EU-US Data Privacy Framework
• A brief introduction to regulatory theory, “ratcheting up,” and the “California/Brussels effect”
• An examination of emerging issues including Artificial Intelligence and the EU AI Act
• The ability to identify authoritative sources for GDPR judgments, opinions, and commentary

Our major infrastructural industries—electricity, gas, telecommunications, transportation and water—were historically controlled by monopolies. Since the 1980s, efforts to introduce competition into these industries have met obstacles. Battles before legislative bodies, regulatory agencies and courts, at the state and federal levels, have produced a distinct body of law. That body of law—the law of introducing competition into historically monopolistic industries—is the subject of this course.

From the principles learned in the course, students have written papers on such diverse topics as renewable energy, internet, movie production, chicken slaughtering, student loans, pharmaceutical research, Uber, Flint's water crisis, utility corporate form, law school admissions, farms seeds and insecticide, Youtube, private space travel, rare minerals used in solar and wind facilities, Facebook, cloud storage, electric storage, and telemedicine at the VA. Some of these papers have made their way into professional journals or law journals.

Regardless of the industry or era, the regulation of infrastructural monopolies and their competitors has  five common elements: its mission (to align business performance with the public interest); its legal principles (ranging from the state law on exclusive monopoly franchise to federal constitutional protection of shareholder investment); policy flexibility (accommodating multiple public purposes, from service reliability to environmental accountability to protection of vulnerable citizens); reliance on multiple professional disciplines (law, economics, finance, accounting, management, engineering and politics); and formal administrative procedures, such as adjudication and rulemaking.

Today, political challenges are causing policymakers to stretch regulation's core legal principles. Four examples of these challenges are: climate change (e.g., To what extent should we make utilities and their customers responsible for "greening" energy production and consumption?); universal service (e.g., Should we bring broadband to every home, and at whose cost?); privacy (How do regulators induce personal changes in energy consumption while protecting the related data from public exposure?); and protection of our infrastructure from hackers, terrorists and natural catastrophes.

Complicating these political challenges are two sources of constant tension: ideology (e.g., private vs. public ownership, government intervention vs. "free market"); and state-federal relations (e.g., Which aspects of utility service are "national," requiring uniformity; and which are "local," warranting state experimentation?).

This field has many jobs, as new issues emerge and as baby boomers retire. Lawyers play varied roles. They advise clients who are suppliers or customers of regulated services, represent parties before regulatory tribunals, advise those tribunals or their legislative overseers, and challenge or defend those tribunals on judicial review.