Zahr K. Said, Defending Deference: A Reply to Professor Sylvain's Disruption and Deference, 74 Md. L. Rev. 777 (2015), https://digitalcommons.law.uw.edu/faculty-articles/184
Defending Deference: A Reply to Professor Sylvain's Disruption and Deference
Maryland Law Review
In responding to Professor Olivier Sylvain's article, Disruption and Deference, Professor Said find the article an excellent introduction to the case of American Broadcasting Companies v. Aereo Inc. [134 S.Ct. 2498 (2014)], one of the most important copyright cases of our era.
However, Professor Sylvain’s article is noteworthy less for what he highlights within the opinion and more for what he reveals is absent from it. The article demonstrates conclusively that courts remained oddly silent on the question of their authority to interpret the Copyright Act. That is, they skipped what Sylvain tells his reader is known informally as a “Chevron Step Zero,” or an inquiry into “whether Congress has one way or another delegated to the agency at issue the authority to interpret and administer an ambiguous provision with the ‘force of law.’”
The article left me with a few unanswered questions that this review will offer up in the spirit of engagement with a very fine piece of work that leaves its reader wanting more. First, what accounts for the judicial silence on the proper authority to assess disruptive technologies? And why the silence, now? How could courts be remaining silent on the question of their proper interpretive authority, given the clear congressional delegation of authority to the Copyright Office and the FCC over their respective legislation, in the context of new technologies?
After reading Disruption and Deference, it seems almost incredible that courts would maintain silence in the face of what appears to be a clear, and unavoidable, legal question to address. Some hints at why and how would clarify the article’s implications. Along those lines, Sylvain’s article raised pressing questions about the role judicial philosophies play in case outcomes and reasoning. It seemed at times that Sylvain’s commitment to proceduralism needed some bolstering, or at least further exploration as a stated commitment, given what might broadly be styled as a default to consequentialism in the legal academy, especially among IP academics.