Notice & Comment

D.C. Circuit Review – Reviewed: Year Six?


* It’s been a good run. If you’re interested, here is the complete list of posts:

August 2015:

  Obamacare Round 3?

  King Solomon and the APA

  “It was the best of times ….”

  Can You Keep a Secret?

September 2015:

  The Second Most Important Court?

  The Future of Administrative Law?

  Lawyers, Guns, and Money

  Chief Justice Roberts and Administrative Law

October 2015:

  Confessions (Pedagogy Edition)

  The Frank Easterbrook Edition

  Out with the Old (and In With the Older?)

  A War Court

November 2015:

  Criminal Law Exceptionalism?

 Why Regulation is a Dirty Word

 Of Dogs and Lions, Heads and Tails

 Clerking, D.C. Circuit Edition

 Black Monday

December 2016:

  A Tale of Two Chenerys

  Deal or No Deal?

  The Fall of Constantinople (Or Why Mistakes Matter—Sometimes)

  Lies We Tell Our Children

January 2016:


  Why Do Judges Wear Black?

  The Gray Brief

  “The RICO Racket” (Or More on the Divide Between Judges and Scholars)

  Brooding Spirits

February 2016:

  Time Travel

  An “Inferior” Court

  Outrunning the Bear

  Punching Bags

March 2016:

  Culture Rot … Or “The Dusty SCOTUS Pop-Culture References of Yore”

  “An extraordinary number of people, institutions, and inanimate objects have wronged Tyrone Hurt ….”

  Brooding Spirits, C.J. Garland Edition

  More Brooding Spirits, C.J. Garland Edition

  The Power to Destroy

April 2016:

  Spring Break?

  The Baron Montesquieu

  “Never, Never—NEVER—Wake a Sleeping Tiger”

  Skiing, Snowboarding, and State Action

May 2016:

  Is Amtrak “Company A”?

  Last Thoughts (For Now) on “Company A”

  The Dissents that Matter Most to Chief Judge Garland

  The Honorable Wilson Warlick (1892-1978)

  No Net Neutrality … and the Dangers of “Moreover”

June 2016:



  Where are the Economists?

  Why There Will Never Be Another LeBron James

​  A Flamingo in the Shadows

July 2016:

​  Why does the Supreme Court’s Term End in June?

  The Mystery of Coburn v. Murphy

  “Heady Days”

  Resolved Redux

  The Frank Easterbrook Edition Redux

August 2016:

  “Anarchist Extremist”

  Year Two Begins

  More Dissent (Plus Advice For Law Reviews)

  Wilco, Trunk Monkey, ThunderCats, Cass Sunstein, Ghostbusters, Katy Perry, Judge Randolph, and Qualified Immunity

September 2016:

  “‘Code Red’ Is Just a Term We Use Down at Gitmo.”

  A Walk in the Wide, Wide World

  Welcome to (Upton Sinclair’s*) The Jungle


  Counting Noses

October 2016:

  Publishing Negative Results

  A Primer on Today’s CFPB Decision

  Tuesdays and Fridays (and Thursdays?)

  More Dogs and Lions

November 2016:

  Justice Clarence Thomas’s Top 25 Oral Arguments

  13,000 Words

  Dear Congress …

  “The Most Important Separation-of-Powers Case in a Generation”

December 2016:

  Earning Their Pay

  Where Are All The “Administrative” Appeals?

  “Appointed by the Court”

  Christmas in the D.C. Circuit

  Circuit Split!

January 2017:

  Resolved 2.0

  Eighth Circuit Edition

  “It’s Like the D.C. Circuit is Actively Trying to Undermine Your Column”

  “The U.S. Court of Appeals for the D.C. Circuit will be closed on … January 20, 2017”


February 2017:

  A Coin Toss

  “So Absurd That It Hardly Requires a Response”

  Breaking News (From About Three Weeks Ago)


March 2017:

  Rearguard Actions

  Tough Week for the NLRB


  “Breyer, Alito, and Their Pals”

  Judge Neil Gorsuch, D.C. Circuit Judge

April 2017:


  Notice & Comment Blogger to OIRA Administrator

  Knowing is Half the Battle

  A Collegial-ish Court

May 2017:


  A Small Thought About the Chief Judge of the D.C. Circuit

  A Smaller Thought About the Chief Judge of the D.C. Circuit

  “Someone Else’s Money”

  En Banc Oral Argument (Part I)

June 2017:

  En Banc Oral Argument (Part II)

  A Nice, Boring Week (Thank Goodness!)

  A New Step for Chevron?

  Things are Heating Up


  Welcome to Lancaster

July 2017:

  Breaking News about Methane Gas

  Let’s Play the * Game Again

  The Dissents of Judge Janice Rogers Brown


  417 Pages

August 2017:

  And One More

  Who Says August is a Quiet Month?

  Should There Be a Year Three?

  Gone Fishin’

  Unsolicited Advice to 2Ls and 3Ls

September 2017:

  The Concurrences of Judge Janice Rogers Brown

  A “Two for One” Special

  Fifth Circuit Edition

  District of Columbia Circuit Court of Appeals

  En Banc Review

October 2017:

  “Most Things I Worry About”

  “Also Known as Fish”


  “Substantially For the Reasons Set Forth ….”

November 2017:

  “How to Effectively Ensure Power is Not Abused?”

  “The Nielson Presumption”

  Mirror, Mirror, on the Wall …

  “I vote for Chenery I, not Chenery II”

December 2017:

  20 Thoughts for a Cold December Day

  Thoughts from Judge Randolph

  Bye-Bye, Browning-Ferris

  Christmas in the D.C. Circuit — Again

  Floods, Fires, and Clerkships

January 2018:

  Resolved 2018

  The Middle Chapters

  Playing the Lottery

  “The judgment of the D.C. Circuit is therefore reversed ….”

  The I-Don’t-Have-Time-To-Read-It-All Version of PHH Corp. v. CFPB

February 2018:

  The Academy and PHH Corp.

  Five Years After the Death of the Clerkship Plan

  On Mock Trials

  A (Mostly) Quiet Week

March 2018:

  Can Hodge v. Talkin Be Distinguished?

  “That’s Why Pencils Have Erasers”

  Can You Guess the Mystery Judge?

  D.C. Circuit to Law Professor


April 2018:

  Trivia Day

  Hello Again, Browning-Ferris

  “Why Congress Matters: The Collective Congress in the Structural Constitution”

  Judge Sentelle … Everywhere

May 2018:

  Maybe Don’t Follow Me on Twitter

  [Under Seal]

  A Small Courtesy (And a Few Miscellaneous Thoughts)

  “Whole of New Deal Program in Confusion”

June 2018:

  Boo-Hoo, Daniel Epps!

  The Irons Footnote

  Let’s Be Practical

  Ten Small Thoughts About Lucia

  A Special Judge Kavanaugh Edition (Co-Authored by Jenn Mascott)

  Some Friendly Advice for Rising 2Ls … or Why Procedure Matters

July 2018:

  Under No Circumstances Should President Trump Nominate *This Judge* to the Supreme Court

  Brooding Spirits, Judge Kavanaugh Edition

  Justice Brett Kavanaugh? Some Preliminary Thoughts

  A New Thought on the In-Line Versus Footnote Citation Debate

  More Artful Dodging

August 2018:

  In Which Your Host Is Lazy

  “The Administrative State”

  Should There Be A Year Four?

  Why I Fear the D.C. Circuit’s Approach to Clerkship Hiring is Misguided

  “All-Purpose” Feeder Judges

September 2018:

  The Supreme (Administrative Law) Court

  Hon. David B. Sentelle, The First Interview

  A “Chenery I” Sort of Week

  A New Cert Grant

October 2018:

  Three Quick Thoughts on Gundy

  A Dog’s Breakfast

  Circuit Justices

  Judge Buckley Makes an Appearance!

November 2018:

  Thanks, C-Span

  Judge Griffith’s Visit to Utah

  Notice & Comment Blogger to OIRA Administrator to D.C. Circuit Judge!

  No Opinions This Week … Again

  A Potential Student Note (or Three)

December 2018:

  O Christmas Tree!

  A Point of Personal Privilege

  Christmas in the D.C. Circuit — One More Time

  Browning-Ferris, One More Time (For Now?)

January 2019:

  Shadows and Unshadows

  “Whatever is is right”

  20 Thoughts for a Snowy Day

  The Use of Philosophers by the D.C. Circuit

February 2019:

  “FCC Day” in the D.C. Circuit

  “Appointed by the Court” Part II

  “Changes in Administrative Law in the Courts”

  Notice & Comment Blogger to Deputy Attorney General

March 2019:


  “Vincent Gambini Taught a Master Class in Cross-Examination.”

  Checking In On Judge Katsas

  Lessons from the D.C. Circuit

  On Second Thought ….

April 2019:

  An Entire Semester of Admin Law?

  Chevron Waiver

  An “Admin Law”-ish Week

  Get Out of Jail Free Card

May 2019:

  The Perfect Opinion

  “In America, THE LAW IS KING”

  The “New” Judges

  Erie as Nondelegation?

June 2019:

  What’s the Most Common Caption?

  Catnip for #AppellateTwitter

  An Update on Lucia

  Precedential Musings

  20 Thoughts from Maryland

July 2019:

  On Second (and Third and Fourth) Clerkships

  October in July

  Another Round of the * Game

  Dead Hands

August 2019:

  Of Mice and Cookies

  “Opinion for the Court filed by Circuit Judge Rao”

  Sausage Making

  Will There be a Year Six?

  More Evidence of a Collegial-ish Court

September 2019:



  A Question Answered

 Come One, Come All to a Battle Royale

October 2019:

  Where are the Law Professors?

  Pretext and the Separation of Powers

  By Any Other Name

  Mandamus Watch

November 2019:

  Our (Relatively) Uncontroversial Appointments Clause

  LeBron James and Lawrence VanDyke  

  Cheat Day


  This Week’s *Other* Nondelegation Case

December 2019:

  73 Years of APA Evolution (In One Chart)

  Clerking Trees

  Fighting Words From Orin Kerr

  Christmas in the D.C. Circuit, 2019 Edition


January 2020:

 The Last Opinion of a Decade

 Was National Petroleum Refiners Association v. FTC Correctly Decided?

 “We [Sometimes?] Begin With The Language Of The Statute.”

 Bulletin Board Material

 Start Your Engines

February 2020:

  More Standing

  Belated Thanks

  The Presidential Medal of Freedom

  Sticky Regulations and N̶e̶t̶ ̶N̶e̶u̶t̶r̶a̶l̶i̶t̶y̶ Restoring Internet Freedom

March 2020:

  The Dissents of Judge Thomas Griffith


  “One of the Most Difficult Issues that Could Confront a Decisionmaker”

  “The New Separation of Powers in the Age of Coronavirus”

April 2020:

  Judges Ken Starr and Justin Walker


  What’s Old is New Again

  More Chevron Waiver

May 2020:

  En Banc’ing It

  On the Banks of Lake Manitou

  More Precedential Musings

 Jerry Sloan

  A Field Study

June 2020:

  Justice Kavanaugh’s Old Stomping Grounds

  Postage Stamps

  A Day Without Administrative Law

  A Bad Week for the DDC

July 2020:

  A Bad Week for the D.C. Circuit

  A Bad Week for the DDC and the D.C. Circuit


  “The Nine Most Terrifying Words in the English language are …”

August 2020:

  Drip Drip Drip

  Why Not Another Round of the * Game?

Going forward, I won’t post every week. I’ll review big or interesting cases. And I’m sure I’ll still read all of them; habits are hard to break.

Thanks everyone who helped me write these posts — especially the good folks in the BYU Library and my many, many research assistants (I’m still trying to compile the full list). For what is worth, re-reading my posts, I cringed at a few, still liked others, and forgot a lot of them. On the whole, though, not a bad way to spend every Friday for five years!

D.C. Circuit Review – Reviewed is designed to help you keep track of the nation’s “second most important court” in just five minutes a week.

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