D.C. Circuit Review – Reviewed: Lessons from the D.C. Circuit

by Aaron Nielson — Friday, Mar. 22, 2019@Aaron_L_Nielson

Today was a big day for the Yale Journal on Regulation. The Journal hosted a conference on “Regulatory Change & the Trump Administrative State.” I was able to participate on the “Changes in Administrative Law in the Courts” panel. Because the D.C. Circuit was quiet this week,* this post will address some of my remarks.

My remarks addressed some lessons I’ve learned in my years covering the D.C. Circuit here at Notice & Comment. This is what I covered:

A lot of my thoughts will be familiar to those who read my posts — indeed, my thoughts come from my posts.

Change Takes Time

My first thought is that change takes a lot time. I first made this point a long time ago.

But it’s true. To understand change in administrative law, it is important to pay attention to several series of cases that take a long time to develop. Academics and judges have been talking about, say, Seminole Rock deference for a very long time. But only now is the issue coming to a head. This is par for the course across a lot of areas of law.

A Collegial-ish Court

The D.C. Circuit is a collegial-ish court:

What do I mean by this? Well, the judges try to get along and don’t disagree just for disagreement’s sake. And there is a lot of common ground. Recall, for instance, the Microsoft monopolization case or the Clean Power Plan litigation. At the same time, there is an “ish.” The judges don’t agree just for the sake of agreement. Instead, they exercise independent judgment, which sometimes requires disagreement. In other words, a pure “political science” model does not explain the D.C. Circuit. Instead, law matters.

Recipes for Tough Cases

Just because judges try to get the law right doesn’t mean that they will always agree — there are hard cases. In fact, some cases are often going to be hard because the test itself is hard. Justice Kavanaugh has made this point about Chevron; there is ambiguity about ambiguity. But it is also true for issues like standing. The more steps in the analysis, the more likely it is that there will be disagreement:

To be sure, just because some tests result in hard cases does not mean that the tests are necessarily wrong (for instance, there are very sound reasons to have a standing doctrine). But it is important to remember that the more complicated the analysis, the more disagreement there will be.

Scholarship Matters

I’m biased here — I am a scholar, so I like to think that scholarship matters. But scholarship matters! That is not to say that scholarship is always cost-justified or that all of it is good. But it is easy to see the influence of scholarship in D.C. Circuit opinions:

The Supreme (Administrative Law) Court

It is also important to recognize the relationship between the D.C. Circuit and the Supreme Court:

This point is especially important because when it comes to which cases the Supreme Court hears, intensity of preference matters. Thus, I predict that replacing Justice Kennedy with Justice Kavanaugh will result in more attention on administrative law, at least at the margins.

Blind Spots?

Finally, it is important to think about the administrative law cases that the D.C. Circuit does not hear — such as immigration:

Perhaps the divergence between the D.C. Circuit and the other circuits on questions such as Chevron is explained by the nature of the cases that the courts decide. Justice Gorsuch, who came from the Tenth Circuit, for instance, saw Chevron work in contexts where the liberty implications were more obvious. Again, I don’t want to overstate my position. But it is worth thinking about.

* * *

Many thanks to the Yale Journal on Regulation for a fun conference. Now I’m off to try some of that famous New Haven pizza I’ve heard so much about.

 

* In United States v. Smoot, Judge Edwards (joined by Judges Srinivasan and Randolph) rejected a bank robber’s claims of ineffective assistance of counsel and improper involvement of the district court in his plea bargaining. “[T]he record conclusively shows that Appellant was not prejudiced by his counsel’s performance,” and “the District Court did not violate Rule 11.”

 

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

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