D.C. Circuit Review – Reviewed: Resolved 2018

by Aaron Nielson — Friday, Jan. 5, 2018@Aaron_L_Nielson

Something unexpected happened last Saturday night. I was hard at work — true story, grading exams — in my home when the clock struck midnight. At that moment I heard fireworks! And it was not just from one house. I was more than a little puzzled. Who in the world would launch fireworks to celebrate the calendar turning over from December 30th to December 31st? And why? But then I remembered where I now live: Provo, Utah. What does that have to do with anything? Well, Provo is very much a church-going town, and — though there are differences of opinion on the subject — a good chunk of its citizens prefer not to host big festive parties on Sundays. So here’s my hunch: More than one “New Year’s” party was held on Saturday night.*

Why am I telling this story? Because it demonstrates that “New Year’s Day is, in a sense, a silly holiday.” Or at least it is an arbitrary holiday; why celebrate January 1st rather than another day? “Okay,” you say, “New Year’s Day is an arbitrary holiday; why does that matter?” Because it explains why I feel comfortable offering my New Year’s resolutions on January 5th rather than the 1st. It’s arbitrary anyway. That said, recall that “arbitrary does not mean capricious” — it is important to pay attention to the passage of time, even if the day we do it doesn’t matter.

So it is time to review how we did with our resolutions. Last year, I reresolved to write an op-ed for the Wall Street Journal. I’m going to stop making that resolution. Again, I failed. Indeed, I didn’t even try! (On the other hand, I did write a report for the Administrative Conference of the United States. I’m sure it will be just as widely read.) So if the Wall Street Journal is out, what’s my new resolution? Not to grade exams at midnight on a Saturday night. I’m a big fan of boring, but that pushes it a bit too far even for me.

How did others do with my resolutions for them? Justice Thomas, alas, didn’t ask more questions — though, I repeat, when he does ask questions, they are very good. Chris Walker did his job; we are finishing our third and final qualified immunity article. Application of the targeting rule, I think, is getting better (though there is still room for improvement); many fans don’t like the rule, but it’s essential. So the goal should be consistency. I have no idea if folks are going outside or are saying “thank you” more, and I fear students still are not taking as many challenging courses as they should. And Hollywood’s sequel-itis is only getting worse. But, on the plus side, it sounds like Jack White has been hard at work.

Do I have new resolutions for others in 2018? I do indeed.

For 2018, the Supreme Court should resolve to listen carefully when an amicus challenges the Court’s jurisdiction. (It looks like the Justices have already taken that one to heart.) Law students should resolve to apply for clerkships. Allstate should stop running this annyoying commercial (no parent, anywhere, would respond that way). Administrative law professors should resolve to prepare for changeit’s coming. We should all watch out for peach thieves, get more sleep (when I was an associate, a partner liked to remind us that “sleep is a weapon”), and reread an old favorite book. And, of course, everyone should resolve to spend less time on social media.

I have resolutions for the D.C. Circuit too. The Court issued no opinions this week; by contrast, in just one week in July, the Court issued 417 pages’ worth of opinions. So in 2018, the Court should resolve to better spread out the work — and, if possible, to write shorter opinions! The Court should also resolve to decide PHH Corp. v. CFPB soon; lots of folks are waiting. The Court — especially its clerks — should resolve to read this short book; history matters. The Court should also resolve to keep making its oral arguments easily accessible. And D.C. Circuit litigants should resolve to update their “appellate filer account[s].”

So there you go! Resolutions for everyone. Enjoy the new year.

* True, if you go by the clock, these Saturday night parties technically ended Sunday morning. But I suspect many folks don’t evaluate days that way; when you wake up, it is Sunday.


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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently serves as a public member of the Administrative Conference of the United States, a federal agency that studies the administrative process and makes recommendations on ways to improve it. He also co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. 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. Follow him on Twitter @Aaron_L_Nielson.

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