Tag Archives: D.C. Circuit

D.C. Circuit Review – Reviewed: Skiing, Snowboarding, and State Action

by Aaron Nielson — Saturday, Apr. 23, 2016@Aaron_L_Nielson

Is there a constitutional right to snowboard? Before answering, know that Utah takes its snow very seriously—as it should. Few places have even a credible claim to “the greatest snow on Earth.” Utah is one of them (as is Hokkaido Island in Japan). But should that snow be used for skiing, snowboarding, or both? Again, […]

D.C. Circuit Review – Reviewed: The Baron Montesquieu

by Aaron Nielson — Sunday, Apr. 10, 2016@Aaron_L_Nielson

Here is an interesting fact: the D.C. Circuit has invoked Charles-Louis de Secondat, baron de La Brède et de Montesquieu—better known as Charles de Montesquieu, the Baron Montesquieu, “ the celebrated Montesquieu,” or just Montesquieu—on at least nine separate occasions. Included in this list are some notable cases: Nixon v. Sirica, Buckley v. Valeo, and […]

D.C. Circuit Review – Reviewed: More Brooding Spirits, C.J. Garland Edition

by Aaron Nielson — Friday, Mar. 18, 2016@Aaron_L_Nielson

On one hand, this was a quiet week in the D.C. Circuit; there were just two opinions, neither of which is that significant (though one is is noteworthy for jurisdiction hawks).* On the other hand, President Obama nominated Chief Judge Garland to serve on the Supreme Court. So on net, it’s fair to say that […]

Reviewed: Brooding Spirits, C.J. Garland Edition

by Aaron Nielson — Wednesday, Mar. 16, 2016@Aaron_L_Nielson

A couple of months back, I offered the following rule of thumb: “If you want to understand an appellate judge, don’t spend too much time on majority opinions,” but instead “look to his or her separate writings.” It is in those opinions—opinions a judge doesn’t have to write—that one best observes a judge trying to […]

D.C. Circuit Review – Reviewed: “An extraordinary number of people, institutions, and inanimate objects have wronged Tyrone Hurt ….”

by Aaron Nielson — Sunday, Mar. 13, 2016@Aaron_L_Nielson

I remember well the indignation I felt when I first learned about unpublished decisions. The idea that an appellate court in a common-law system can issue a decision that “carries no precedential force” —an opinion good for one case only—struck me as scandalous. The rule of law, I felt, depended on precedential effect. But then […]

D.C. Circuit Review – Reviewed: Culture Rot … Or “The Dusty SCOTUS Pop-Culture References of Yore”

by Aaron Nielson — Saturday, Mar. 5, 2016@Aaron_L_Nielson

Last week, I praised Justice Elena Kagan for her sharp questions at oral argument. This week, however, her dissent in Lockhart v. United States prompts a friendly concern: Should there be pop culture references in Supreme Court opinions? Although such references are fun today, I fear they will confuse lawyers tomorrow. Indeed, just as the […]

D.C. Circuit Review – Reviewed: Punching Bags

by Aaron Nielson — Saturday, Feb. 27, 2016@Aaron_L_Nielson

Justice Elena Kagan has many talents, one of which is asking sharp questions at oral argument. For instance, one of my favorite moments as a litigator came, in a case about raisins , when Kagan asked these questions to the attorney for the United States: (1) “[B]efore you do that then [i.e., get to his […]

D.C. Circuit Review – Reviewed: Outrunning the Bear

by Aaron Nielson — Sunday, Feb. 21, 2016@Aaron_L_Nielson

The D.C. Circuit issued no opinions this week. Especially with this extra time, it is fitting to take a few moments to reflect on the “admin law” legacy of Justice Scalia, a former administrative law professor and surely one of the most important and talented jurists in the history of the Supreme Court. Justice Scalia […]