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. v. NLRB—was whether a port operator lawfully replaced an old union with a new one. No. 20-1411 (Rao, J.). According to the NLRB, the operator acted unlawfully.
Nothing especially remarkable in that result. The problem was in the reasoning—or lack thereof.
The NLRB refused to look at a collective-bargaining agreement that the operator was a party to, calling the agreement a “red herring.” That was arbitrary, the D.C. Circuit held, because the NLRB never explained why the agreement was a red herring. And the NLRB “cannot simply label a substantial contractual argument a ‘red herring’ in order to avoid addressing it.”
We see three lessons here.
One, agencies sometimes take lazy rhetorical shortcuts. That can violate the APA.
Two, don’t ever say “red herring.” It’s an extra-tedious cliché, up there with fishing expedition, slippery slope, Hail Mary, and second bite at the apple.
Three, never think that labeling something a red herring is the same thing as showing that it’s a red herring. Ask yourself, What work is “red herring” doing, and how can I show the reader that work? If “red herring” is as apt as you think it is, showing the work shouldn’t be hard.
Ditto for other cliches. They’re as boring as the day is long–and, worse, as arguments they fall flat.
Which clichés do you hate the most?