Notice & Comment

D.C. Circuit Review – Reviewed: Where are the Law Professors?

If you follow the D.C. Circuit, you have probably already read the Court’s (latest) “net neutrality” decision, or at least heard about it. When big cases come along, my goal is to come up with something new to say. That often isn’t easy to do. But I try. For instance, after the D.C. Circuit’s 2016 “net neutrality” decision, I wrote this post: Where are the Economists? I explained that economists featured prominently in Judge Williams’ dissent but not in the majority opinion. Similarly, when the en banc Court decided PHH Corp. v. CFPB, I put together a list of all of the law review articles cited. Candidly, these weren’t great posts, but at least they said something new.

When I saw 2019’s “net neutrality” case — largely upholding the FCC’s deregulatory rules, but remanding without vacatur on several points, and rejecting the agency’s preemption analysis (the back and forth on preemption between Judge Williams in dissent and the per curiam panel of Judges Millett and Wilkins is well worth your time, especially if you wish to expand your vocabulary) — my instinct was to do another post like the one for PHH Corp. At least from my vantage point, it can be interesting to see which law professors are cited in major opinions and for what propositions. But it turns out that this post instead will be another one like Where are the Economists? For you see, although this week’s decision* is 186 pages long, not one law professor qua law professor is cited (unless I missed it). True, the Court cited Josh Wright. But he was cited as an economist, not a law professor. The Court also cited one law review article: Robert Cannon, The Legacy of the Federal Communications Commission’s Computer Inquiries, 55 Fed. Comm. L.J. 167 (2003). I don’t believe Cannon is a law professor, however.

The Court, notably, cited other professors. The Court was even willing to cite literature. Judge Millett quoted T.S. Eliot and Judge Williams shared a few lines from Macbeth. But no law professors.

One possible reason may be that many of the fights here were not so much about the law itself as about policy (in the context of arbitrary and capricious review). Here is an example:

But that can’t be the only reason. After all, there is a lot of interesting law here, even if it is embedded in a complicated statutory scheme with many technical facts. It is possible that academy’s legal arguments made into the briefs. It also is possible that the legal academy needs to up its game. One thing I do know, however, is this: Even though the D.C. Circuit didn’t write about them, a lot of law professors — especially in the world of telecommunications law — will now write about the D.C. Circuit!

* The Court decided another case this week. In United States v. Gamarra, Judge Randolph — joined by Judges Rogers and Pillard — concluded that the district court did not err when it allowed “the government to medicate [the defendant] without his consent for the purpose of rendering him competent to stand trial.” Judge Pillard concurred to express concern and to explain that the defendant had not preserved a number of arguments.

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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