I remember well the indignation I felt when I first learned about unpublished decisions. The idea that an appellate court in a common-law system can issue a decision that “carries no precedential force“—an opinion good for one case only—struck me as scandalous. The rule of law, I felt, depended on precedential effect. But then I […]

Last week, I praised Justice Elena Kagan for her sharp questions at oral argument. This week, however, her dissent in Lockhart v. United States prompts a friendly concern: Should there be pop culture references in Supreme Court opinions? Although such references are fun today, I fear they will confuse lawyers tomorrow. Indeed, just as the […]

Justice Elena Kagan has many talents, one of which is asking sharp questions at oral argument. For instance, one of my favorite moments as a litigator came, in a case about raisins, when Kagan asked these questions to the attorney for the United States: (1) “[B]efore you do that then [i.e., get to his prepared […]

The D.C. Circuit issued no opinions this week. Especially with this extra time, it is fitting to take a few moments to reflect on the “admin law” legacy of Justice Scalia, a former administrative law professor and surely one of the most important and talented jurists in the history of the Supreme Court. Justice Scalia […]

The U.S. Supreme Court reminded the world this week that while the D.C. Circuit may be the nation’s “second most important court,” the Supreme Court remains the first. In particular, the Supreme Court decided to stay the EPA’s Power Plant Rule, even though a motions panel of the D.C. Circuit (Judges Henderson, Rogers, and Srinivasan) […]

Here is a pretty good rule of thumb: If you want to understand an appellate judge, don’t spend too much time on majority opinions. To be sure, those opinions are almost always the most important ones—they’re the law, after all.* But the author of a majority opinion must write an opinion that reflects the views […]

Here is a little known fact about Justice Samuel Alito: in 1989, he wrote a chapter for a book entitled The RICO Racket (buy it now on Amazon for $100!). In his chapter—Racketeering Made Simple(r)—Alito described himself as “a federal prosecutor and staunch RICO supporter.” In a colorful way, his chapter runs through the basics […]

When it comes to appellate litigation, the color of a brief matters a lot. Judges—busy people—are particular about it because standardization helps. After all, a judge can quickly sort out the appellant’s brief from the appellee’s brief from the appendix from the amicus briefs. The importance of a color code, moreover, is especially important at […]

This isn’t a novel insight but it bears repeating: no two judges are the same. They grew up in different families; had different careers; have different interests; and operate with different intuitions. Yet judges in the United States—at least as a rule—wear the same uniform: a plain black robe.* Recently, however, Noah Feldman—one of the […]

At 12:02 last night, one of my (very tired) children made a keen observation: “New Years is a silly holiday.” I sympathize. We don’t celebrate turning the calendar from January to February, nor do we throw a party when February 29th rolls around every Olympiad.* But you know what? The fact that January 1st is […]

Here’s a new Christmas experience: This year, I had to check with the federal government to make sure that “Santa’s” gift for my young son is legal. You see, I bought him a toy helicopter. It turns out that is now called a drone. And it also turns out that the FAA has begun regulating […]

This is a foolish way to start a sentence, especially one published on the internet: “I’m no military historian, but ….” After all, there are lots of actual military historians out there, and they often have strong opinions on the subject. Even so, I’ll chance it. I’m no military historian, but it seems to me […]

Everything I am about to say will be old hat for many readers. Even so, I like to provide public service announcements to law students. In that spirit, here is a valuable lesson: law — or at least the practice of law — is about math. In particular, law revolves around expected value, and by […]

Law clerks, of course, vow to keep confidential “any information [they] receive through [their] clerkship that is not part of the public record.” Even so, this announcement should be safe: D.C. Circuit law clerks are terrible at basketball. Each year, the D.C. Circuit clerks play a game of basketball against the Supreme Court clerks. In my […]