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 […]

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 […]

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 […]

This week was a very quiet one at the D.C. Circuit. There was only one decision and it had nothing to do with administrative law.* Perhaps it is spring break at the D.C. Circuit. (I’m kidding . . . probably.) So if you read D.C. Circuit Review – Reviewed for admin law opinions, take the […]

I learned something this week. By way of background, last September, I opened a Twitter account. As of now, I have 904 tweets. I’m biased, but I think that at least some of these tweets are insightful, at least as far as Twitter goes. Yet my most popular tweet of all time, by a fairly […]

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 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 this […]

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 […]

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 I […]

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 […]

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 prepared […]