Florida Law Review Forum

Charles Duan
Internet Freedom with Teeth
Response to Sapna Kumar, Regulating Digital Trade

Professor Kumar’s article identifies, at bottom, two types of errors with the Commission’s reasoning, and the important distinction between these two types of errors. First, she identifies textual or legal errors with the ITC’s analysis. But in stark contrast, the second category of errors is policy based. More brightly than the run-of-the-mill case, ClearCorrect Operating, LLC v. International Trade Commission, as elucidated by Professor Kumar’s article, illustrates this divide in judicial decision-making between the legal modes of analyses and underlying policy considerations. Full appreciation of the relevance of policy considerations to the ClearCorrect case requires an understanding of the history of the case outside the four corners of the Federal Circuit’s opinion. While Professor Kumar’s article touches upon many aspects of that history, there are numerous additional details and events that shed further light upon the case, details that the present author had the privilege to observe and participate in at times. This Article, then, seeks to offer that broader context of the case and the surrounding debate. Read more.