Notice & Comment

D.C. Circuit Review – Reviewed: “The New Separation of Powers in the Age of Coronavirus”

I’m pleased to announce that I’ve written an important new article: “The New Separation of Powers in the Age of Coronavirus.” This is still a draft; comments definitely welcome.


Obviously, I kid. The title, however, comes from a great post at PrawfsBlawg by Paul Horwitz. Professor Horwitz — whom I’ve never met, but whose posts I have long appreciated — had this to say about writing legal scholarship during the current moment:

If one is going to write about current events, the best bet is to be boring: write about small problems, technical problems, practical problems, and save the big-picture musing for when it is likelier to be accurate. To be first with the latter kind of writing only results in fame and glory, not accuracy or utility. A blog post or legal periodical publication titled “Using the Space Bar to Mute and Unmute in Zoom,” or “How to Get an Emergency Hearing in Family Court in Paducah,” or “What Section 7005(c) of the Families First Coronavirus Response Act Means” will be much more useful and accurate than one on “The New Separation of Powers in the Age of Coronavirus,” or “How International Law Will be Utterly Transformed by the Plague Years.” 

There is much wisdom in Professor Horwitz’s observation.

I started reading PrawfsBlawg a long time ago. It has been around for 15 years and I’ve probably checked in 2,500 times. I’ve learned a lot from it, even when I disagree with what is said. So in honor of PrawfsBlawg, this week’s D.C. Circuit Review — Reviewed will be centered around that blog’s posts.*

First, in a post entitled States can pirate and plunder copyrighted material all they want, Professor Howard Wasserman explores what it means to concur in the judgment (see also the comment from Asher Steinberg): “A concurrence in the judgment usually means agreement with the result but not the legal analysis leading to the opinion. A concurrence means, in this context, that the author joins the opinion except for a few legal points that do not affect the majority’s reasoning and path to the judgment.”

With that proposed definition idea in mind, consider Baltimore Gas and Electric Company v. FERC. Here is the line-up:

That is unusual. What is even more unusual, though, is unless I’m missing something, I don’t believe the panel disagrees about the ultimate judgment — that the petition for review should be denied. Am I wrong? Here is how Judge Williams opens his dissent (emphasis added by me):

So if everyone agrees FERC should win, is this a dissent or a concurrence in the judgment? Where should the line be drawn?

Next, Professor Richard Re wrote a post entitled, Is “Stare Decisis … for Suckers”? In it, he argues that “even if precedent has no binding force — that is, even if it is purely permissive in nature — precedent can still do a lot of work. In other words, there is a way in which even a fairly hard-hearted cynic can care about stare decisis without being a sucker.”

Precedent certainly matters in the lower courts. Let’s return to Baltimore Gas. In Part III, Judge Rao — in addressing whether FERC had to distinguish earlier agency precedent — concluded in response to an argument that the requirement does not apply to decisions by agency staff (rather than FERC itself) that “[s]etting aside the permissibility of FERC’s subdelegation, which is not a question before us, the Commission cannot lend its authority to staff and then disclaim responsibility for the actions they take.” Judge Williams did not offer an opinion on this point. Rao then concluded that the duty to distinguish applies even if the earlier decisions do not contain “reasoned analysis.” Here, Williams did disagree to the extent the agency’s earlier position was unopposed. Rao and Williams read D.C. Circuit precedent differently — but both certainly take it seriously.

Moving on, a few years ago, Professor Andrew Guthrie Ferguson wrote about ineffective assistance of counsel in the context of sleeping lawyers. The D.C. Circuit didn’t address sleeping lawyers this week, but it did decide two cases about ineffective assistance. In United States v. Browne, a terrifying kidnapping case, Judge Sentelle — joined by Judges Henderson and Pillard — concluded that ineffective assistance should be considered by the district court in the first instance. And in United States v. Miller, Judge Wilkins — joined by Judges Garland and Williams — held that “Miller has established ineffective assistance with respect to his claim that trial counsel should have informed the district court that Miller had lost one year of Maryland state jail credits while awaiting his federal trial.” Judge Williams wrote separately to address “the complexities of Miller’s original sentencing and [his] understanding of how these complexities will impact his resentencing.”

Back to PrawfsBlawg, Professor Jeff Lipshaw helpfully wrote about “one of the more disconcerting aspects of synchronous Zoom teaching,” namely, “not getting a live response to the jokes.” I sympathize. Unfortunately, I’m not very funny, but I try, if nothing else to make the classroom experience more comfortable. That’s a lot harder with online teaching. Professor Lipshaw’s solution is to use an app on his phone that makes sound effects. I confess: I’ve also used a sound-effect application in my in-person teaching. I may need to use it again for online teaching. Thanks Professor Lipshaw!

How does this relate to the D.C. Circuit? Well, on the subject of smaller issues that may be overlooked but shouldn’t be, consider Barko v. Halliburton Company, which is about litigation costs in an age of e-discovery. Here is how Judge Tatel opened his opinion:

And here is a sample of the analysis:

Professor Lipshaw also wrote a fairly punchy post this week. Candidly, it was not my cup of tea hot chocolate, but I also was not the target audience. That said, on the subject of punchiness, consider this snippet from Judge Millett’s concurrence in Snohomish County v. STB:

By way of background, Snohomish County is about gaining permission to operate a rail line by filing a “notice of exemption” with “false or misleading information.” Judge Pillard (joined by Judges Millett and Wilkins) concluded that “the Board’s failure to consider whether the notices were independently misleading under the Board’s own precedent — even if not demonstrably false as a matter of state or federal law — was arbitrary and capricious.” Millett wrote separately “to identify yet another troubling aspect of the Board’s decision: Its insistence that only state courts, or perhaps a bankruptcy court, can decide whether filings submitted to the Board were ‘false’ within the meaning of the Board’s own regulation [as part of a litigation to establish property ownership or a contractual relationship].”

With that, I’ll return to big thoughts about The New Separation of Powers in the Age of Coronavirus … or adapting my lectures for online instruction.

* Alas, I couldn’t find a way to address Bushrod Washington and Social Distancing, “What It Means To Be Human: The Case for the Body in Public Bioethics”, Think Yiddish, cast whoever, Entry Level Hiring: The 2020 Report – Second Call for Information, Mulligan on Rubenstein on federal common law, or Professor Orly Lobel’s posts onquarantine hacks.”

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