Short Circuit 090: Live at Georgetown Law (4/6/18)
Apr 6, 2018
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Guests Aaron Nielson and Cate Stetson discuss what makes the D.C. Circuit unique, admin law issues, and Judge Posner’s “mystery” D.C. Circuit judge. The episode includes a lightning round of trivia about current judges and explores the specific rules and practices of the D.C. Circuit.
The Supreme Court's decision on the Lucia v. SEC case will determine the classification and independence of administrative law judges (ALJs) at independent agencies.
The DC Circuit's ruling on the net neutrality case had significant implications for internet regulation and the power of the FCC.
Appellate clerkships and engaging with various forms of writing are valuable in shaping successful careers as appellate litigators, highlighting the importance of persuasive writing and an in-depth understanding of the law.
Deep dives
Lucia v. SEC and the Appointment of ALJs
The case of Lucia v. SEC is currently being heard by the Supreme Court. This case explores whether the SEC's administrative law judges (ALJs) are classified as employees or inferior officers. The DC Circuit ruled that they are employees, while the Tenth Circuit disagreed and deemed them inferior officers. This circuit split has significant implications, as it could lead to challenges of ALJ decisions and also raises questions about the independence of ALJs at independent agencies. The Supreme Court's decision will have far-reaching consequences for administrative law and accountability.
The Net Neutrality Case and FCC Authority
Another significant case that came out of the DC Circuit was the net neutrality case. This case focused on whether the FCC had the legal authority to issue its net neutrality order. Net neutrality is a highly debated issue, and the DC Circuit played a crucial role in determining the legality of the FCC's regulations. The case attracted widespread attention and had implications for internet regulation and open access. The DC Circuit's ruling on this case had significant implications for the future of net neutrality and the power of the FCC.
Importance of Appellate Clerkships and Reading Widely
Both Kate Stetson and Aaron Nielsen emphasized the importance of appellate clerkships in shaping their careers as appellate litigators. They also highlighted the value of reading widely and engaging with various forms of writing, such as poetry and short stories, to enhance one's writing and persuasive skills. In addition, they emphasized the need for persuasion rather than simply arguing, highlighting that effective appellate advocacy requires the ability to persuade through well-crafted arguments and an in-depth understanding of the law.
Net Neutrality and Chevron Deference
The podcast discusses the net neutrality issue and its connection to Chevron deference. It explains how the FCC's decision to classify broadband internet as a telecommunication service allowed them to regulate it and implement net neutrality rules. It also explores the ongoing debate on the limits of Chevron deference, questioning whether federal agencies should have such broad authority to interpret and implement regulations.
The Consumer Financial Protection Bureau and the PHH case
The PHH case involves the constitutionality of the Consumer Financial Protection Bureau (CFPB) and its director's excessive insulation from presidential control. The case raises questions about the separation of powers and the reach of executive authority. The panel opinion, written by Judge Kavanaugh, deemed the CFPB's structure unconstitutional, arguing that it concentrated too much power in a single person. However, the en banc decision by the DC Circuit upheld the constitutionality of the CFPB's structure. The case highlights the ongoing debate over the scope of the executive branch's power and the role of independent regulatory agencies.
This week on the podcast: D.C. Circuit extravaganza featuring special guests Professor Aaron Nielson, wanted “Anti-Administrativist” and Sage of the C.A.D.C.; and Cate Stetson, Hogan Lovells’ legendary appellate litigator who is one of the D.C. Circuit’s most frequent (and successful litigators). We record the episode with a LIVE student audience at Georgetown Law Center (thanks to our hosts, the students of the Georgetown chapter of the Federalist Society).
Hear Aaron and Cate discuss what makes the D.C. Circuit unique? What are the biggest admin law issues coming out of the court? And just who is Judge Posner’s “mystery” D.C. Circuit judge, anyway? Plus: a lightning round of trivia about the current judges. WARNING: this episode’s guests may be armed with anti-deference arguments.
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Newsletter: http://ij.org/about-us/shortcircuit/
Want to email us? shortcircuit@ij.org
Links to a few items we discuss on this episode:
Aaron Nielson’s JREG post on the Lucia v. SEC oral argument: http://yalejreg.com/nc/d-c-circuit-review-reviewed-en-banc-oral-argument-part-ii/
Law Prof Kent Barnett’s article on Administrative Law Judges (ALJs): https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2144217
Aaron Nielson’s JREG post on Judge Posner’s D.C. Circuit “Mystery Judge”: http://yalejreg.com/nc/d-c-circuit-review-reviewed-can-you-guess-the-mystery-judge/
IJ’s latest lawsuit, a free speech challenge to the FDA’s Orwellian “skim milk” labeling regulations: http://ij.org/case/fda-skim-milk/
Aaron Nielson’s JREG post on the D.C. Circuit’s quirky “asterisk rule”: http://yalejreg.com/nc/d-c-circuit-review-reviewed-by-aaron-nielson/
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