Let me go beyond yesterday’s post to ask a related question. The Commission may well file a petition for rehearing and/or certiorari in yesterday’s net neutrality decision. But if I were the FCC’s general counsel, would I actually want review of that decision? I think the answer is probably no. Here is how I would analyze […]
Author Archive | Stuart Benjamin
Winning and Losing in the Net Neutrality Decision
There is lots to chew on in the D.C. Circuit’s net neutrality opinion issued today. (Full disclosure: I worked on the order and legal defense when I was at the FCC, so apply whatever filters you deem appropriate.) There are a ton of interesting administrative law issues, which I plan to write about later. But […]
The Net Neutrality Oral Argument
This morning the DC Circuit heard oral argument in the facial challenge to the FCC’s net neutrality rulemaking (which, full disclosure, I worked on when I was at the FCC). The most extensive writeup I have seen about the oral argument is here (note that the author, Harold Feld, is a strong supporter of the […]
Agencies and Legislative/Judicial Power
City of Arlington v. FCC has some interesting nuggets. For instance, Scalia’s majority flatly states: “Make no mistake—the ultimate target here is Chevron itself,” though the dissent disclaims any such intent. But I want to flag here another iteration of debates over how to characterize agencies’ power. Roberts’ dissent says that Although modern administrative agencies fit […]
Moderate Senate Republicans Fall Off Their Own Cliff
The most commonly used scores for ideological distance are DW-Nominate scores, based on representatives’ actual votes. These measures reduce various flavors of “liberal” and “conservative” to a single metric, but they are the scores most widely used and trusted by political scientists and political commentators because they measure virtually all the actual votes in a […]
Litigation Strategy and Coalition to Defend Affirmative Action v. Regents
I will bet anyone (in jurisdictions where it is legal) that the Supreme Court will reverse the Sixth Circuit in Coalition to Defend Affirmative Action v. Regents. Indeed, my main question is how badly the Coalition to Defend Affirmative Action loses. My guess is that they get maybe two votes on the Supreme Court. When Ted […]
Supreme Court Strategery
An article I coauthored came out in the Journal of Legal Analysis that might be of interest, and that I’m pretty jazzed about. Here is the abstract: Should a strategic Justice assemble a broader coalition for the majority opinion than is necessary, even if that means accommodating changes that move the opinion away from the author’s […]
More on the judicial smackdown: You’re the one who engaged in misconduct!
District Judge Robert Jones, who enjoined Nevada’s “None of These Candidates” as likely unconstitutional (see my post from a few hours ago), responded to the 9th Circuit’s order and Justice Reinhardt’s concurrence in particular here. I agree with the commenters that he was probably better off remaining silent, since he does not justify his delays in dealing […]
“His dilatory tactics appear to serve no purpose other than to seek to prevent the state from taking an appeal of his decision before it must print the ballots.”
I am finally returning to blogging a bit. From the “judicial smackdown” files: A week ago, a district judge agreed with arguments that Nevada’s 36-year-old statute requiring a “None of These Candidates” option on the ballot for statewide elections is likely unconstitutional and issued an oral preliminary injunction. That’s pretty remarkable – on what basis […]
Did Newt Gingrich Break the Law with his Bolton Promise? No.
Newt Gingrich said today that he would ask John Bolton to be his Secretary of State, and many bloggers (as well as Keith Olbermann) have responded by saying that he broke the law in doing so. I think they are wrong — indeed, pretty clearly wrong. As Mitu Gulati and I pointed out in a […]
Silberman’s Majority Opinion as Template?
The D.C. upheld the constitutionality of the health care act today (Silberman and Edwards reached the merits and voted to uphold; Kavanaugh found no jurisdiction and did not reach the merits). Silberman’s opinion reads to me like the opinion I would expect from Justice Scalia upholding the act — notably, that one can distinguish activity […]
Expanding Obesity
With this blog post I’m returning to blogging after a long hiatus. This one is on a topic that is not particularly relevant to my interests, but I find it remarkable: According to a new report on obesity in the U.S., the state with the lowest obesity rate today (Colorado) would have had the highest […]
FCC v. Fox and the Demise of Local Broadcasting:
I have written at short and great length about the desirability of opening up more wireless frequencies to flexible uses, and in particular freeing up spectrum currently devoted to television broadcasting. Now those opposed to indecency are helping the cause. As I noted in an op-ed yesterday, the Supreme Court’s decision in FCC v. Fox […]
Are the markets making fun of those who attributed its fall to Obama? Or maybe it was never that simple?
A number of commentators have asserted a causal relationship between Obama’s presidency and the stock market’s decline in the past couple of months — that the market has plunged because of Obama’s plans (see a short compilation here). But wait a minute — with today’s gains, the markets are now about where they were when […]
Nice Guys Finish … First?
I was happily surprised to see that Michael Bennet has been tapped to replace Ken Salazar as a Senator from Colorado. I knew Michael from law school and working in DC thereafter, and he always struck me as very smart, able, and all-around impressive. What makes his appointment so surprising is that he is so […]