D.C. Circuit Review – Reviewed: “The Nielson Presumption”

by Aaron Nielson — Friday, Nov. 10, 2017@Aaron_L_Nielson

Note: Another quiet week in the D.C. Circuit. This week’s post will be short — especially because I’m traveling.

This week the D.C. Circuit formally announced an interesting policy: “Earlier this year, the Court agreed to provide live audio streaming of arguments upon request in an individual case if the panel assigned to the case approves. Requests for live audio streaming should be directed to Betsy Paret, Circuit Executive.”

Here’s a thought. Isn’t there a danger that this will threaten collegiality? What happens if some members of the Court never want oral argument to be live streamed? Won’t we will able to identify those judges simply by looking at the cases where live streaming is denied and finding the common denominators? With enough data points, the pattern will become clear. Won’t that be irritating to those judges? (On the other hand, presumably this middle-ground position will not be as irritating to such judges as a policy that all arguments are live streamed.)

Here is another thought: Why doesn’t the Supreme Court release audio more quickly? Truth be told, I’m wary of cameras in the courtroom, especially at the Supreme Court. Audio, however, presumably isn’t as risky (especially if its release is delayed a few hours). As it is now, I often find myself waiting for a transcript — and that (rushed) transcript frequently includes mistakes. For instance, a recent transcript includes a delightful typo:

Nielson Presumption

That one caught my attention: “Nielson” is not a common name, especially with that spelling.* (The idea of a “Nielson presumption” is great; I wonder what it would be? “When making important, technical policies, let’s experiment with formal rulemaking?”)

Same-day audio would minimize the transcript problem.

Anyway, enough idle musing. There was just one opinion this week. In Mayo v. Reynolds, Judge Edwards (joined by Judges Millet and Williams) determined that the National Park Service did not violate the National Environmental Policy Act by authorizing recreational elk hunting in Grand Teton National Park. In 2007, it seems that the government “adopted a fifteen-year plan to manage the Jackson [elk] herd.” The plan established “an elk-reduction program pursuant to which the Park Service would authorize elk hunting as needed to attain the Plan’s population objectives.” Must the Park Service conduct a NEPA analysis each year it implements the fifteen-year elk-reduction program? No: “Once an agency has taken a ‘hard look’ at ‘every significant aspect of the environmental impact’ of a proposed major federal action, it is not required to repeat its analysis simply because the agency makes subsequent discretionary choices in implementing the program.”

Have a great weekend.

UPDATE: The indispensable Howard Bashman has this comment: “If I may respond to one of Nielson’s comments, it is difficult to conceive that any D.C. Circuit judges would be presumptively against live-streaming that court’s oral arguments, especially since the audio of that court’s oral arguments are posted online in due course.” My initial instinct was that some judge did not want all arguments live streamed or the Court would have set live streaming as the default rather, as it did, no live streaming. As I think more about it, however, I suspect there is another explanation for that default: It probably is a pain — or perhaps not even technologically feasible — to set up the live streaming for every argument. So instead the Court has limited it to those cases for which someone asks. What’s the takeaway? I should be more careful drafting blog posts when I’m traveling; it takes time to think!


* Trust me on this one — I’ve never had a problem signing up for an email address.


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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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