D.C. Circuit Review – Reviewed: Of Mice and Cookies
As regular readers may recall, I’m opposed — presumptively — to pop culture references in judicial opinions. That presumption is almost irrebuttable when it comes to Supreme Court opinions, which may be read for a hundred years or more. But even in other courts, they should be used sparingly and only after much consideration. “Pop culture has a place on Twitter, sure, but a judicial decision is different.”
Over the last few years I’ve spotted a number of references to If You Give a Mouse a Cookie.* I can understand the appeal. Judges confront speculative chains of causation; so does If You Give a Mouse a Cookie. Judicial work also sometimes involves parties who have already received the benefit of the doubt and are now pushing their luck; so does If You Give a Mouse a Cookie. And judges often worry about slippery slopes. Even so, such references are tricky. Only talented writers can pull them off — and a little spice goes a long way.
Judge Millett is a talented writer. This week, she decided to work in a rodent reference:
Candidly, I suspect that the paragraph would have worked just as well without If You Give a Mouse a Cookie. But it didn’t hurt anything. And — because Judge Millett doesn’t do this all the time — it helped convey that this is an unusual case. So I think she pulled it off.
The case is Allegheny Defense Project v. FERC. A per curiam panel (Chief Judge Garland, joined by Judges Tatel and Millett) rejected a challenge to a pipeline expansion brought by environmental groups and homeowners because of “deferential standards of agency review and binding circuit precedent.” That reference to “binding circuit precedent” is what prompted Millett’s concurrence. Here is how she explains the problem:
And here is how she explains her solution:
There is a lot more going on, so read the whole concurrence. I’m curious to see what happens next.
The Court decided five other cases this week. I’ll discuss four of them because we have no idea (yet) what In re Sealed Case is about.
In American Clinical Laboratory v. Azar, Judge Pillard — joined by Judges Griffith and Millett — addressed Medicare reimbursements and jurisdiction stripping. Notably, the Court read the restriction on judicial review narrowly. If this is your field, definitely read the whole opinion. Here is a snippet:
Exhaustless Inc. v. FAA is another if-you-give-a-mouse-a-cookie case, albeit of the speculative-chain-of-causation variety rather than the we-already-were-plenty-generous variety. Judge Srinivasan (joined by Judges Henderson and Pillard) opened his opinion this way:
And this is how he closed it:
Along the way, Judge Srinivasan examined the numerous steps in the asserted causation chain.
United States v. Islam — per Judge Katsas, joined by Judges Silberman and Williams — examines at length what happens if a criminal defendant fails “to object to a magistrate judge’s adverse report and recommendation.” This is what happens:
Finally, Cruz v. McAleenan concerns workplace discrimination and summary judgment. Here is how Judge Wilkins (joined by Judges Griffith and Williams) opened his opinion:
And here is a key paragraph of analysis:
That’s the week. A departing thought, however: Even if mice weren’t notorious ingrates, you probably still shouldn’t give a mouse a cookie.
* Using Westlaw, I believe the first legal reference to If You Give a Mouse a Cookie was in 1999: “If You Give the Court a Commerce Clause: An Environmental Justice Critique of Supreme Court Interstate Waste Jurisprudence.” Perhaps the best use comes from a 2008 decision from the Northern District of Illinois: “Reflecting on the SEC’s position, one is reminded of the story of the mouse and the cookie: if you give a mouse a cookie, he will ask for a glass of milk, and how can he drink his milk without a straw, etc. The SEC receives the benefit of the five-year statute of limitations. It also seeks the application of the ‘discovery rule,’ which would start the clock ticking at the time the alleged injury was discovered instead of when the alleged act was committed. And now, the Commission seeks the most generous possible accrual date; not the date when it first learned of facts indicating there might be a problem, but the date it had learned all the facts necessary to file a suit.” The book has also been floating around the D.C. district court for a while now. It was also used last year in the Southern District of New York.
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