Monthly Archives: November 2012

Chief Judge Sentelle to Take Senior Status

Chief Judge David Sentelle will be taking senior status on February 12, 2013, according to the U.S. Courts website.  Todd Ruger reports that the next judge in line to be Chief is Continue reading

D.C. Circuit Approves Retroactive Application of FERC’s New Interpretation of the Natural Gas Act

When can an agency adjudicate past conduct according to a new policy that conflicts with the agency’s former policy? Continue reading

“‘You never know’ is no substitute for substantial evidence”: D.C. Circuit Vacates NLRB’s Finding that Union’s Overtures Broke Bargaining Impasse

Today the D.C. Circuit vacated the National Labor Relations Board’s decision that an employer unlawfully refused to bargain with a union before its employees decertified the union’s representation. Noting the court’s obligation to “examine carefully both the Board’s findings and its reasoning,” Chief Judge Sentelle concluded that “the record evidence not only does not support the Board’s finding, but uniformly supports [the employer's] position” that the parties were at an impasse. Continue reading

Can “Human Drama” Help To Fill the D.C. Circuit’s Three Empty Seats?

David Fontana of George Washington School of Law has a piece on the Huffington Post suggesting that President Obama can pick up the pace of judicial confirmations if he “nominate[s] progressives who happen to have been appointed or hired by Republicans” and “create[s] nomination hearings that have more human drama and less legal theory.”

The D.C. Circuit may offer the best opportunity to test Fontana’s theory. Continue reading

Political Question Doctrine Does Not Shield Controversial Recess Appointments

Victor Williams of Catholic Law School has an op-ed in today’s National Law Journal arguing that any challenge to the President’s recess appointments of National Labor Relations Board members is nonjusticiable on political question grounds. Continue reading

Weekend Review

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Five D.C. Circuit Judges Will Speak at Federalist Society Convention

The D.C. Circuit is showing up in force at the Federalist Society’s annual National Lawyers Convention today through Saturday at the Mayflower Hotel, three stops away from Judiciary Square on the Red Line.  Continue reading

What “Withering Scrutiny”? Greenhouse on Judge Kavanaugh on Voting Rights

In the New York Times Opinionator blog, Linda Greenhouse tries to tease out tension between dicta by Chief Justice Roberts and dicta by Judge Kavanaugh that she suggests could influence the outcome of Shelby County v. Holder, the Voting Rights Act case in which the Supreme Court recently granted cert:  Continue reading

Krumholz on Access to Oral Argument Recordings

Peter J. Krumholz (Hale Westfall, LLP) has published The Case for Greater Public Access to Oral Argument Recordings in the Tenth Circuit, 89 Denver U. L. Rev. 395 (2012).

The author lists the D.C. Circuit among the minority of “laggard” circuits that have failed to follow the Supreme Court’s example of publishing audio recordings of oral arguments online. Continue reading

Weekend Review

On Friday the  Supreme Court granted cert in a Voting Rights Act case from the D.C. Circuit, Shelby County v. Holder.  The grant came three days after the general election and three years after the Supreme Court raised, in the words of Judge Tatel’s majority opinion, “serious questions about the continued constitutionality of section 5.” Continue reading