Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” With the passing of Justice John Paul Stevens, RIP, I’ve read commentaries suggesting his Chevron deference “legacy” is at risk. In fact, these pundits are mistaken. While it’s true that Justice Stevens penned […]
Welcome to another installment of Fifth Circuit Review-Reviewed! As you are no-doubt aware, the Fifth Circuit heard oral argument in Texas v. United States earlier this week, a case challenging the constitutionality of the Affordable Care Act. That case is already getting plenty of attention from many capable commentators, so this post will focus on […]
The D.C. Circuit is a fascinating court. If you don’t believe me, you probably aren’t reading this post. If you are reading this post and you still don’t believe me, you will soon. That said, the D.C. Circuit is a quirky court. Its docket is odd. There are some criminal appeals (as you’ll see from […]
When I saw that this blog had added a regular feature on administrative-law happenings in the Ninth Circuit, I knew it was time to propose a similar D.C. Circuit-Review-Reviewed-style column for the Fifth Circuit. I already report on important administrative law decisions from the Fifth Circuit (as well as other topics) on my own blog, […]
The D.C. Circuit gets more than its fair share of regulatory cases. But it does not have a monopoly on them. As regular Notice & Comment readers know, the Ninth Circuit also has a sizable “admin law” docket. The same can be said of the Fifth Circuit. And then-Judge Gorsuch decided a number of important […]
This is a quick post — I’m traveling. Here is a little known fact about Notice & Comment. For a while, we tried to find someone to write a D.C. Circuit Review–Reviewed-style column for the Ninth Circuit, which — like the D.C. Circuit — is also home to a great deal of administrative law. Alas, […]
About ten years ago, I came across a phrase I had never heard before: dog’s breakfast. It was in a dissent penned by Chief Justice Roberts. Here is the passage: When the state courts considered these cases, our precedents did not provide them with “clearly established” law, but instead a dog’s breakfast of divided, conflicting, […]
When President Obama nominated Chief Judge Garland to the Supreme Court, I put together a list of his dissents and concurrences. As I explained then: President Trump has just nominated Judge Brett Kavanaugh to the Supreme Court. With the help of two hard-working research assistants* I’ve put together a similar list for him. Note that […]
Ever since I was a 2L, I’ve had a soft spot for Judge David Sentelle. It is not because he is a “very bright and capable” jurist — though he surely is that. And it is not because he is a published author — though his book is quite good. It is not even because […]
Apologies: This post was written quickly. My evening was spent at a D.C. Circuit-ish event. The D.C. Circuit and “Net Neutrality” have a long history. Here is a short, very simplified version of it.* In 2002, the FCC decided that internet access was an “information service” rather than a “common-carrier” service. The decision was challenged […]
In the aftermath of Watergate, a young — well, young-ish — Antonin Scalia found himself defending executive privilege before Congress. This is how he closed his remarks: “I realize that anyone saying a few kind words about executive privilege after the events of the last few years is in a position somewhat akin the man […]
The Ninth Circuit’s decision to deny en banc review in Washington v. Trump was not, of course, the biggest development yesterday in litigation related to the President’s executive orders restricting entry from seven six overwhelmingly Muslim countries. But the Ninth Circuit’s denial of reconsideration—and, more specifically, Judge Bybee’s dissent from the denial—is worthy of attention […]
Today the D.C. Circuit applied the Prill doctrine. There are many things about administrative law that I do not know well, but Prill is not one of them. In fact, Daniel Hemel and I are currently working on an article all about Prill (which we dub Chevron Step One-and-a-Half). We’ll publish it later this year. […]
This week has been busy in the D.C. Circuit. There are nine cases. But only three have anything to do with administrative law. That fact reminded me of a quirky tidbit that I discovered about the D.C. Circuit: The number of administrative appeals decided by the D.C. Circuit appears to have been declining over the […]
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 […]