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, […]
With all of the Judge Kavanaugh news,* I suspect it has been hard for many folks to get as much work done as normal — including folks on the D.C. Circuit. The Court did not decide any cases. But that doesn’t mean nothing happened in the world of admin law. To the contrary, the Supreme […]
Well. This was not a quiet week in the D.C. Circuit — even though the Court didn’t decide any cases.* But there is a bit of D.C. Circuit news worth noting. The Supreme Court granted certiorari in Azar v. Allina Health Services. And what is the pressing question? Enjoy: Maybe a bit more background is […]
Apologies — this post was written on the run; traveling today. As regular readers know, Chenery — both I and II — is a big deal in the D.C. Circuit. When I was clerking, I remember an oral argument in which Judge Garland asked counsel something like, “Well, wouldn’t that present a Chenery issue?,” spoken […]
The D.C. Circuit did not decide any cases this week. This creates a dilemma. How should you spend your “five minutes”? One option is to listen to this song and call it a week. That would be a very good choice. For those of you, however, who would like to learn something new about the […]
There is a good chance that the Senate will confirm Judge Kavanaugh to the Supreme Court. If that happens, a plurality (at least*) of the Justices will be alums of the D.C. Circuit: Chief Justice Roberts, and Justices Thomas, Ginsburg, and Kavanaugh. This lopsidedness will not be unprecedented. Before his passing, Justice Scalia sat on […]
The D.C. Circuit — hurrah! — did not decide any cases this week. Even if it had, no doubt the big news would be Judge Kavanaugh’s* upcoming confirmation hearings. That is the context for this week’s post. There is something about Judge Kavanaugh’s record that I don’t think has received enough attention. He is a […]
Here is a blog post I wish I could take back: “Five Years After the Death of the Clerkship Plan.” My post, from February of this year, concerned a (then) long-time feature of the D.C. Circuit’s homepage: The backstory is that in 2013, the D.C. Circuit officially withdrew from the “Law Clerk Hiring Plan,” which […]
I started writing D.C. Circuit Review–Reviewed in August of 2015. Each August since 2015, I have asked myself whether it is worthwhile to keep going for another year. So far, my answer has always been, “Sure, why not?” But this year I’m wavering. There are downsides to these posts; they take a lot of time, […]
Is “administrative state” an ideological term? According to the Associated Press, maybe so! Here is an interesting paragraph from the story flagged today at SCOTUSBlog and a couple of days ago on Twitter (ugh) by Chris Walker: Reading that, I was taken aback. My sense is that folks of all stripes use the term. Indeed, […]
Here at Notice & Comment, I try to come up with a fun* theme each week. This week, however, I’m going to play a get-out-of-fun-theme-free card. The Court decided too many cases. Alas. Here is the rundown. Let’s start with the FERC cases. In Verso Corporation v. FERC, Judge Wilkins (joined by Judges Rogers and […]
A couple of weeks ago, I rebutted — well, at least I think so — the suggestion that Judge Kavanaugh is an artful dodger. This week, however, I’m going to backpedal a bit. It turns out that Kavanaugh may very well have to be an artful dodger once he gets to the Supreme Court. Let […]
While the world has focused on other things this week, a debate has engulfed a narrow, very nerdy slice of Twitter of which I am pleased to be part: Should citations in legal documents be “in-line” or in the footnotes? We don’t shy away from hard issues here at Notice & Comment. So I’ve decided […]
For obvious reasons, a lot of folks are thinking hard about Judge Brett Kavanaugh. So today seems like a good one to share some preliminary thoughts, especially because the Senate Judiciary Committee will soon schedule hearings. I’ve been following the D.C. Circuit for a while now. And by any measure, Judge Kavanaugh is a major […]
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 […]