Monthly Archives: June 2012

Who Authored the Per Curiam Greenhouse Gas Opinion?

A panel may choose to publish an opinion per curiam rather than under a single judicial author’s name for more than one reason. Continue reading

D.C. Circuit Upholds EPA’s Greenhouse Gas Regulation

As predicted, the D.C. Circuit upheld yesterday the EPA’s finding that “greenhouse gas,” including carbon dioxide, is an “air pollutant” and the agency’s succeeding regulation of tailpipe emissions and stationary sources of greenhouse gas [pdf].  Continue reading

Harvard Law Review on the Presumption of Regularity for Government Intelligence Reports

The Harvard Law Review has published a case comment entitled D.C. Circuit Holds that Government Intelligence Reports Are Entitled to a Presumption of Regularity–Latif v. Obama, 666 F.3d 746 (D.C. Cir. 2011)Continue reading

Panel’s Half-Hearted Enforcement of NLRB’s Union Certification Casts Doubt on Key Precedent

On Friday, a panel of the D.C. Circuit unanimously upheld the National Labor Relation Board’s certification of a union election despite grave misgivings about the judicial and agency precedent the court was forced to apply [pdf].   Continue reading

Kerr on the Mosaic Theory of the Fourth Amendment

Orin S. Kerr (George Washington University Law School) has posted The Mosaic Theory of the Fourth Amendment, 110 Mich. L. Rev. (forthcoming 2012), on SSRN. Continue reading

No Deference for SEC’s “Vague and Indecisive” Interpretation of its Own Rule

On Tuesday, the D.C. Circuit in Rapoport v. SEC [pdf] cited the rule that a reviewing court defers to an agency’s interpretation of its own rules, but Chief Judge Sentelle’s unanimous opinion illustrates why this Auer deference has been called into question by the author of Auer and why, three days ago, a majority of the Supreme Court voiced the same concerns. Continue reading

Judge Kavanaugh on War-on-Terror Jurisprudence

The American University Law Review has published War, Terror, and the Federal Courts, Ten Years after 9/11, the lightly edited transcript of a panel featuring Judge Brett M. Kavanaugh that was held at the 2012 Annual Meeting of the Association of American Law Schools. Continue reading

Ginsburg and Wright on Dynamic versus Static Competition Models in Antitrust Analysis

Judge Douglas H. Ginsburg (D.C. Circuit, New York University Law School) and Joshua D. Wright (George Mason University School of Law) have posted Dynamic Analysis and the Limits of Antitrust Institutions, 78 Antitrust L.J. 1 (2012), on SSRN.  Here is the abstract:  Continue reading

Doe v. Rumsfeld Highlights Tension in D.C. Circuit’s Recognition of Implied Constitutional Remedies in Foreign Policy Arena

In Doe v. Rumsfeld, the D.C. Circuit reversed the district court’s decision recognizing a Bivens remedy for a U.S. citizen who says he was confined and mistreated by the military without due process while employed as a translator by a defense contracting firm in Iraq.   Continue reading

Fencing Chevron’s Domain: Fox v. Clinton

Those who think the D.C. Circuit’s Chevron jurisprudence is a rubber stamp for agency action should read Tuesday’s Fox v. Clinton decision [pdf].  Judge Edwards’s opinion identifies seven overlapping reasons why the court could not defer to the State Department’s refusal to issue a Certificate of Loss of Nationality to an emigrant seeking to renounce his American citizenship:  Continue reading