Category Archives: Blog Review

Reply: Political Question Answer to Recess Appointment Test

Ed. note:  In anticipation of the D.C. Circuit’s consideration of Noel Canning v. NLRB, Professor Victor Williams recently posted a thought-provoking defense of last January’s controversial recess appointments based on the political question doctrine.  I responded, arguing that the President’s recess appointment power is limited in a judicially reviewable manner by Article I, section 6, which gives to the House the power to prevent the Senate from recessing and to the Senate the power to decide what constitutes a recess.  The D.C. Circuit heard oral argument on December 5.  This is Professor Williams’s gracious rebuttal. 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

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

Cato Institute to TSA: Stop the Foot-dragging on Notice-and-Comment for Naked Body Scanners

The Cato Institute’s Jim Harper has announced a Whitehouse.org petition to make the Transportation Security Administration comply with the D.C. Circuit’s mandate in EPIC v. Department of Homeland Security [pdf].  It has been nearly a year since the court held that the so-called naked body scanners installed at airports do not violate the Fourth Amendment but ordered TSA to “promptly” cure its failure to conduct notice-and-comment rulemaking.   Continue reading

Is the D.C. Circuit Too Small To Go En Banc?

Ted Frank of the Center for Class Action Fairness has a post on PointofLaw.com explaining why he thinks the D.C. Circuit’s recent opinion upholding the Cobell settlement was wrongly decided.  (Frank argued the case for the objector.)  Frank asks for advice about whether to petition for rehearing en banc. Continue reading

Follow @DCCircuitReview on Twitter for More D.C. Circuit News

Today, after eight months of tweeting, @DCCircuitReview added its 100th follower.  Congratulations @JusticeStake!  Your prize?  Approximately two D.C.-Circuit-related tweets per day, plus headlines from the blog. Continue reading

Conditional Probability Lowered the Odds for Guantanamo Habeas Petitioners

A recent study by Professors Mark Denbeaux and Jonathan Hafetz of Seton Hall School of Law concludes that the D.C. Circuit’s 2010 decision in Al Adahi v. Obama marked a turning point in the district court’s adjudication of Guantanamo habeas petitions. Continue reading

D.C. Circuit Could Split Three Ways on Material Support for Terrorism Conviction

Today the D.C. Circuit heard oral argument in a challenge to Salim Ahmed Hamdan’s conviction for material support for terrorism–a crime that Congress recognized after Hamdan committed the acts for which he was convicted but which the Government says is derived from “the domestic common law of war.” Continue reading

So much for agency expertise.

Joshua D. Wright (George Mason University School of Law) and Angela M. Diveley have posted on RegBlog a synopsis of their recent unpublished paper, Do Expert Agencies Outperform Generalist Judges? Some Preliminary Evidence from the Federal Trade Commission. Continue reading