One of the most unusual cases you will ever read is McClure v. Carter —from the District of Idaho, in 1981. The case was a constitutional challenge to a judicial appointment, brought by a sitting U.S. Senator. That’s unusual by itself. The case is more unusual still, however, because the suit was brought under a […]
June has come to an end, the Justices have dispersed, and once more, in the words of a young John Roberts, “the Constitution is safe for the summer.” Every year, the Supreme Court rushes to finish up its work before the Fourth of July. And then the Justices are off to Austria, Malta, Arkansas, Italy, […]
As Will Baude reminds us, courts often do important things that don’t receive enough attention. Baude dubbed this dynamic the “shadow docket” in the context of the Supreme Court, but there is no reason why his insight is limited to the Justices. Courts everywhere make decisions that are significant but yet don’t end up in […]
My son is away at camp this week, and that’s probably for the best. It means he has missed the last two NBA Finals games. One of his least favorite players is LeBron James, and LeBron—by any measure—has had a pretty amazing week. At the same time, my son is a huge fan of Shaun […]
Yesterday, the D.C. Circuit announced its decision in United States Telecom Association v. FCC, i.e., the Net Neutrality case.* The co-authored majority opinion (Judges Tatel and Srinivasan) upheld the FCC’s new scheme over Judge Williams’ partial dissent. Reviewing the competing opinions, I was struck by something: the asymmetrical treatment of economists. First, let’s review the […]
Yesterday, while scanning my Twitter feed, I found myself reading a great article in The Atlantic: “The Senate Finally Passed Chemical Safety Reform.” This article is well worth your time, especially because the legislation is now headed to President Obama for his signature. As I was reading, however, I noticed something: two uses of the […]
Perhaps another circuit court has adopted this local rule too (though I’ve not yet come across it), but for tables of authorities in the D.C. Circuit, “an asterisk must be placed next to those authorities on which the brief principally relies, together with a notation at the bottom of the first page of the table […]
Everyone, it seems, is waiting for the D.C. Circuit’s “net neutrality” decision. The case was argued last December and so could be decided anytime.* But it wasn’t decided this week. Although the D.C. Circuit’s only opinion this week did involve the FCC, and while it was authored by Judge Tatel, it wasn’t the big one […]
On May 26, I’ll be moderating a free teleforum for the American Bar Association’s Section of Administrative Law and Regulatory Practice Rulemaking Committee on the Congressional Review Act. (Jeff Rosen, who is participating in the teleforum, has written here about the CRA.) Here is the relevant information from the ABA: May 26, 2016 2:00 PM […]
One night during the summer of 1987, Judge David Sentelle communed with the dead. Sentelle, then of the Western District of North Carolina, was confronted with a tricky Pullman Abstention question. As he struggled with the issue, he asked what the Honorable Wilson Warlick would do. Judge Warlick had been dead for almost a decade. […]
This week, Chief Judge Garland sent his questionnaire to the Senate. As I reviewed that “lengthy” submission, my mind turned again to “brooding spirts.” In particular, it is interesting that Garland’s list of his “most significant” opinions includes two dissents. To begin, here is Garland’s list: Cause of Action v. FTC (2015) Wagner v. FEC […]
This has been a quiet week at the D.C. Circuit. There was only one published opinion—and it’s about attorneys’ fees. So with this extra time, why not think a little bit more about Amtrak? (Or, if you would rather spend your “five minutes a week” on something else, enjoy this or this instead.) Dan Hemel’s […]
Imagine three companies—let’s call them A, B, and C. Each manufactures cars. Imagine further that Congress authorizes A to regulate B and C, and A uses that power to benefit itself, for instance by requiring B and C to provide valuable inputs to A on preferential terms. Would that be constitutional? Certainly not, at least […]
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, […]
I love a good headline. And boy, did I stumble across a great one today: “Never, Never—NEVER—Wake A Sleeping Tiger.” (The subheading is pretty great too: “Don’t even think about it.”) And sure enough, if you click through, you will see a video of one tiger waking another tiger, and then you’ll learn why you […]