D.C. Circuit Review – Reviewed: Maybe Don’t Follow Me on Twitter

by Aaron Nielson — Friday, May 4, 2018@Aaron_L_Nielson

Perusing the internet, I see that a study suggests cable news may make one less informed about the world. What a depressing thought.

My instinct is to question such a claim, at least if the point is taken too far. Although, no doubt, there are often much better ways to gain information and televised news has obvious flaws, it strikes me as implausible that cable news causes viewers lose knowledge.* At least in net. But I agree the format is not especially conducive to reflection, nor does theory play a large enough role. Cable news, after all, largely focuses on — sometimes overhyping — events. And while events can be important, a good theory is worth a thousand facts.

Thinking about cable news, my mind turns to its cousin, Twitter. It is no secret why elected leaders use Twitter; because voters use it, those who need votes have good reason to speak to those voters. That’s smart politics. And I understand why advertisers use Twitter; again, that is where eyeballs are. But why should you and I use Twitter?

When I started posting here in 2015, I also began “tweeting” (ugh, what a silly word). I’m still not sold on it. Although I’m not quite ready to write the whole thing off, doesn’t Eric Posner score more than a few points?

1. People sign up for Twitter for two reasons: to obtain information and to exert influence.

2. Twitter serves these functions poorly. If you want information about a specific topic, a Google search is a more efficient way to obtain it. If you want information about current events, you do better by reading a newspaper.

3. Twitter provides information poorly because tweets are mostly driven by the latest outrage and are hence redundant. The rare tweet that contains an interesting or unusual idea is lost in the cataract.

4. Twitter is a poor device for exerting influence because of #5.

5. No tweet has ever persuaded anyone of anything. ….

11. People retweet tweets that validate their own beliefs.

12. For this reason, the most effective tweet is a clever formulation of a view that everyone already believes. If one lacks cleverness, forcefulness provides a second best.

13. Tweets are either snide or outraged. …

16. In the non-virtual world, successful people take care to keep up impressions, for example, they avoid making controversial statements to friends, colleagues, and strangers except when unavoidable, and even then do so in a carefully respectful way.

17. In Twitter, the same people act as if their audience consisted of a few like-minded friends and forget that it actually consists of a diverse group of people who may not agree with them in every particular on politics, religion, morality, metaphysics, and personal hygiene. Hence tweeting becomes a source of misunderstanding and mutual hostility. The Twitter paradox is that one seeks solidarity but is constantly reminded of one’s solitude.

Well said.

But I’m not sure about point 2. Twitter helps me keep track of specialized news — e.g., D.C. Circuit news. Sure, I can use Google News Alerts, but sometimes the story doesn’t say “D.C. Circuit” yet I see why it is related. Thus, I have tried to follow reporters and other sources who can help me keep track of what is happening. Point 3 also seems a tad overstated. It can be hard to find “interesting or unusual idea[s]” on Twitter; the noise-to-knowledge ratio isn’t always pleasant. But there are interesting ideas to be found.

Here is an example. Last week I learned some things I didn’t know I didn’t know about Morrison v. Olson. And because it was an unknown unknown, I didn’t know to research it. In particular, per Sheldon Gilbert, I learned that 30 years ago (on April 26, 1988) the Supreme Court heard oral argument in the case. I also learned that Alexia Morrison, “while waiting for a decision from the DC Circuit,” gave a speech about her view of the independent counsel’s role that is available on C-SPAN. For those of us who teach admin law, it may be worthwhile to share that speech with our students, along with the oral argument itself. I also learned that Justice Kennedy recused himself, perhaps “because Ed Meese, the AG who was heavily involved in his selection as a Justice, was also subject to an independent counsel investigation.” I probably should have known that, but, I confess, I did not. That’s a point for Twitter.

Here is another example. Perhaps you have been wondering what is going to happen in PHH Corp. v. CFPB, a pretty important D.C. Circuit case. (I suppose I should have done a Google News Alert for the case, but I didn’t — life is short.) Then I ran across two tweets yesterday from Joe Palmore:

J Palmore 1

J Palmore 2

And on that subject, I knew there was another path to the Supreme Court for the removal issue in PHH Corp. because I saw a story about it a few weeks back — on Twitter! That’s another point for Twitter.

There are many such examples. Thus, it seems safe to say that Twitter has benefits. To be fair to Posner, however, do the benefits outweigh the costs? That is a harder question. I think so, but the costs are real.

This week, D.C. Circuit Review — Reviewed will share the D.C. Circuit’s cases via Twitter. What do you think?

Let’s begin with David Saxe Productions, LLC an v. NLRB. Here is what I tweeted:

David Saxe Productions v. NLRB

That’s actually a pretty good summary of the case. Sure, you could learn more by reading more of the opinion. For instance, Judge Rogers concluded that a remand was in order because “[a] majority of the Board found pretext but functionally rejected a key credibility finding by the administrative law judge … without acknowledging that it was doing so. How the Board reconciled its conclusion on pretext and the credibility finding is unclear. The Board also appears not to account for evidence detracting from its finding of pretext.” And it is interesting (I guess) to learn about how Las Vegas shows are staffed. But the tweet — and the introduction to the opinion it shows — sums up the case pretty well.

Now consider the two other NLRB cases: Staffco of Brooklyn, LLC v. NLRB and Pruitthealth-Virginia Park, LLC v. NLRB. Here are the two tweets:

Staffco of Brooklyn, LLC v. NLRB

Pruitthealth-Virginia Park, LLC v. NLRB

These cases have a bit more going on. For instance, in Staffco, we learn that the D.C. Circuit does “not defer to NLRB’s legal conclusions interpreting labor agreements” but does “defer to NLRB fact-finding if supported by substantial evidence,” and that such deference extends to “findings related to the contract, including evidence of intent from ‘bargaining history.’” Thus, given the Board’s findings, the Court was unwilling to say there was a waiver of a statutory right. Likewise, although the Court agreed that “StaffCo’s arguments are not without convincing force” that “the pension plan would have rejected any status quo payments made after expiration of the CBA,” that was not enough to overcome deference. Similarly, in PruittHealth, the Court offered this explanation (among others): “A close election result may or may not be caused by Union misconduct. If there has been no misconduct, however, then a close vote is simply an indication of divided views among the employees. Therefore, a close vote, without more, is insufficient to require the rerun of an election. Indeed, any suggestion to the contrary is specious.” I think these opinions are worth reading, but again, the tweets by themselves do an okay job, especially if the goal is simply to alert those folks who may want to take a deeper dive.

The D.C. Circuit also issued two non-“admin law” opinionsUnited States v. Lee and Z.B. v. D.C.:

USA v. John Lee

Z.B. v. D.C

In Lee, the Court concluded that even though the district court had failed to inform Lee that he was waiving his appeal rights, the Court would review the district court’s decision “for plain error, with the burden on the defendant to show that the error affected his substantial rights.” The Court found that Lee had failed to meet this burden. In dissent, Judge Rogers urged that “the plain text of Rule 11(b)(1)(N) imposes a mandatory requirement on the district court” and that nothing “else in the district court record reveals any indication specifically that Lee understood that he had a right to appeal and that he was giving up that right.” Here, I think this case is too complicated for Twitter alone; there is a lot going on.

Likewise, in Z.B., the Court concluded that the district court “excused arguable shortfalls in the IEP [individualized education program] DCPS offered to Z.B.” because the court did not consider that “the short time frame between the eligibility determination and the adoption of the IEP … was not DCPS’s own fault.” The Court also determined that the district court erred in requiring “Z.B.’s parents … to show that Z.B.’s special needs could not be met within” the D.C. public schools: “[T]he legal issue is not whether, as a general and hypothetical matter, the school system as a whole somehow could have met Z.B.’s needs” but rather “whether each of the IEPs that Hearst actually proffered was adequate at the time; if not, DCPS may be responsible to pay for an education that was.” Twitter does not do justice to the tricky issues in this case.

The conclusion? Twitter can be useful, but it doesn’t replace actually reading the opinions.

And that’s the week. Now, I suppose, I should tweet this post. Ugh.

 

* Candidly, I despise watching television news; reading is a much better way to learn information. One of the least enjoyable aspects of flying is being bombarded in the airport with televisions hanging from the ceiling that blast out news programs — really just panels of folks with talking points — that seem to repeat the same story — sometimes important, but sometimes not — again and again. From time to time, I find myself looking around the terminal to see if anyone is watching. Often the answer is no! I’m not quite willing to start looking for Shangri-La, but sometimes I bemusedly wonder if perhaps James Hilton’s mythical “lamas” had a point:

Lost Horizon

 

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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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