Category Archives: Case Analysis

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

Today’s Opinion: Court Upholds SSA’s Nondisclosure of Top Employers of Undocumented Workers

In a three-page opinion, Judge Kavanaugh followed the district court in upholding the Social Security Administration’s refusal to comply with a Freedom of Information Act request from an anti-corruption organization.   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

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

Does a Dissenting Vote for the Government Prove its Position was “Substantially Justified”?

Taxpayers who prevailed on appeal in their challenge to the IRS’s scheme for refunding an unlawful telephone excise tax won’t get attorneys’ fees from the Government. Continue reading

Failed Motion for Summary Judgment Preserves Purely Legal Issue for Appeal

To preserve a purely legal question for appeal, a party need not move for judgment as a matter of law pursuant to Rule 50 of the Federal Rules of Civil Procedure, if she has already moved for and lost summary judgment on the issue.   Continue reading

Does Tobacco Companies’ RICO Loss Presage First Amendment Victory?

[Update: Yes.]

Tobacco lawyers looking for a silver lining in their double loss in the D.C. Circuit on Friday may find it in the first paragraph of Judge Brown’s opinion affirming the denial of their motion to vacate an order enjoining future false statements about the health effects of cigarettes and requiring the companies to issue “corrective statements.” Continue reading

Hayden & Bodie on Business Roundtable v. SEC

Grant M. Hayden (Hofstra University, Maurice A. Deane School of Law) and Matthew T. Bodie (Saint Louis University School of Law) have posted The Bizarre Law & Economics of ‘Business Roundtable v. SEC, 38 J. Corp. L. (forthcoming 2012), on SSRN. Continue reading

Divided D.C. Circuit Rejects Airlines’ First Amendment Challenge Based on Agency’s Interpretation of its Own Rule

In Spirit Airlines v. Department of Transportation, a D.C. Circuit panel with the unlikely split of Judges Tatel and Henderson in the majority and Judge Randolph in dissent, engages in two parallel debates.  The first is constitutional, and the second is over the proper tools of judicial decisionmaking.   Continue reading

Advocates, Beware Selectively Quoting Your Opponent

Judge Ginsburg’s opinion upholding the EPA’s new national ambient air quality standard (NAAQS) for nitrogen dioxide [pdf] sounds a warning note about the dangers of leaving out key words from a quotation:   Continue reading