A blog on practice in the Nation’s second-most powerful court

Briefing

It’s arbitrary and capricious to use the phrase “red herring”

So held the D.C. Circuit today. We overstate matters only slightly. The question in The Case of the Red Herring—technically captioned Everport Terminal Services, Inc. …

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Briefing

D.C. Circuit opinion illustrates the value of illustrations

Highlighting the value courts place on simple illustrations, the D.C. Circuit last week relied repeatedly in a published opinion on a homespun illustration offered by …

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Jurisdiction

Supreme Court sides with D.C. Circuit on arbitration waivers

In case you missed it, before its recent Term ended, the Supreme Court sided with the D.C. Circuit in an important case about arbitration clauses. …

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Appellate procedure

How far afield may amici go?

In a decision issued today, the court rejected an argument in an amicus brief because it was not made by the parties: Several environmental, community, …

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Appellate procedure

Deciding whether to take a precautionary appeal

A new decision from the D.C. Circuit illustrates the challenge litigants face when an agency stubbornly refuses to change its mind. Nostrum Pharms ., LLC …

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Judges

Florence Pan nominated to D.C. Circuit

Today the president announced that he’s picked someone to fill the seat soon to be vacated by Ketanji Brown-Jackson, who has been confirmed as a …

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Appellate procedure

Before you call the clerk’s office: Have you checked the Handbook?

Often we post on this blog about court opinions. But today we’re making a public service announcement: Before you call the clerk’s office with a …

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Oral Argument

The danger of spontaneous concessions at argument

Two cases decided by the D.C. Circuit today show the gravity of concessions at oral argument. In one case, the court cited counsel’s concession as …

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Court

The D.C. Circuit’s (exceedingly low) view of unpublished opinions

A decision today involving Nigeria reveals the D.C. Circuit’s view of on-point unpublished opinions. Process and Indus. Dev. Ltd. v. Fed. Republic of Nigeria (No. …

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Statutory interpretation

The limits of the “Congress knows how to say” canon

In cases involving statutory construction, someone often will say, “if Congress had wanted to say X it would have been easy enough to say X.” …

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