It’s no secret that some people have misgivings about the administrative state—including, most notably, the Chief Justice of the United States. In fact, Chief Justice Roberts believes that the administrative state—with its “‘vast and varied federal bureaucracy’”—presents a “danger” that “cannot be dismissed.” Although “it would be a bit much” to condemn today’s regulatory scheme […]
Although the D.C. Circuit issued two opinions this week, it really only addressed one question: What exactly is fair game for an employee to do during a labor dispute? And the answer? It can be hard to say—so ask the NLRB! Consider first Consolidated Communications, Inc. v. NLRB. Here, the Court (per Judge Millett, joined […]
Seminole Rock (or Auer) deference prompts many disagreements. Everyone agrees, however, that Seminole Rock has captured the attention of scholars, policymakers, and the judiciary. That is why we at Notice & Comment have decided that the time has come to collect thoughts regarding different aspects of Seminole Rock. Indeed, over the next two weeks, we […]
Each week I blog about the D.C. Circuit. There is a reason for this. In today’s world, we are flooded with commentary about the Supreme Court—and the law of diminishing returns is real. Thus, although the D.C. Circuit is (probably) less important than the Supreme Court, there is more “bounce to the ounce” in covering […]
Contrary to the old canard that “every law professor . . . can recite A Few Good Men from memory,” I don’t think I’ve ever actually seen A Few Good Men in its entirety. Sure, I’ve stumbled across snippets of it (it seems like it has been rebroadcast on TNT, I don’t know, about four […]
Everyone who has been following administrative law in recent years knows that Seminole Rock deference is controversial. Because of Seminole Rock deference (also known as Auer deference), courts—generally—defer to an agency’s interpretation of its own ambiguous regulations. (Put another way, “Auer deference is Chevron deference applied to regulations rather than statutes.”) This sort of deference […]
Reader, no doubt you have come to appreciate just how much nicer the new Notice & Comment looks compared to the old site. (Indeed, the old Notice & Comment looked a lot like this or even this.) To be sure, the transition has not been seamless; I’ve noticed a hiccup now and then. But on […]
About six months ago, I wrote a post on dissenting opinions in the D.C. Circuit. This seems like a good week to update that post with a list of every concurrence and dissent filed in the D.C. Circuit since January 30, 2016. As an added bonus, because students are just now coming back to school, […]
This week’s post marks an anniversary: one year of D.C. Circuit Review–Reviewed. Before summarizing the cases this week, I’ll take a moment to reflect on reading every opinion the D.C. Circuit has released since August 10, 2015.* First, from day one, I made a conscious decision to not let on whether I think the court […]
Law students go to law school for all sorts of reasons. Some dream of practicing criminal law because they watch a lot of television. Others want to be politicians and see law school as a launching pad. Many want to work for nonprofits because they care deeply about particular issues. Others want to follow in […]
I’ll admit it: I like words I don’t come across every day.* For instance, I recently heard “carnival food” at a very formal gathering and smiled. What a great word: “carnival”—especially combined with “food.” (“Carnival fare” would have done the trick too, but I like “food” better.) This has been a very busy week at […]
Last October, I dedicated one of these posts to Judge Frank Easterbrook. I praised him for being “an extraordinary jurist” who is “prolific; influential; and scholarly.”* Of course, Easterbrook is not a judge on the D.C. Circuit, nor would he like to be. But he is an important judge and his views matter—indeed, Westlaw lists […]
Just over six months ago, I set resolutions for myself, law students, the Supreme Court, the Big 12 Conference, my freeloading chickens, and the D.C. Circuit, among others. This week seems as good as any to check in on how everyone is doing. First, I resolved to write something for the Wall Street Journal. Alas, […]
To be sure, I don’t really know what life was like in the 1970s; I wasn’t even born. Even so, I’m sure it was dreadful. After all, as I read my history books, all I see are ugly clothes, disco, impeachment, killer rabbits, long lines for gas, plus something about a “malaise.” Poor souls: The only […]
Warning! This post may only be of interest to me. But there is a mystery this week in the D.C. Circuit: What happened in Coburn v. Murphy? In Coburn, the D.C. Circuit included an intriguing footnote: “Judge Henderson was drawn to replace Chief Judge Garland, who originally heard argument in this case but did not […]