Following up on yesterday's post about Chief Justice Roberts and legal authority, I did a quick check of the opinions John Roberts filed as a circuit court judge. I found a bunch of cases in which Roberts discussed or cited scholarly commentary. In every case, the commentary cited or discussed was a leading treatise.

  First, there was U.S. ex rel. Totten v. Bombardier Corp, 380 F.3d 488 (D.C. Cir. 2004), a case about the False Claims Act. In response to a reading of the Act offered by Judge Garland in dissent, Roberts wrote the following:

The proposition that subsection (a)(2) harkens back to (a)(1), and that the latter requires presentment, is supported in scholarly commentary on the False Claims Act. A leading treatise on the False Claims Act states that "[t]he three requirements of Section [3729](a)(1)" — including the requirement "that a claim be presented to the United States" — are "still applicable" to Section 3729(a)(2). 1 JOHN T. BOESE, CIVIL FALSE CLAIMS AND QUI TAM ACTIONS § 2.01[B], at 2-21 (2d ed. Supp. 2004-1). The dissent's contrary conclusion — that subsection (a)(2) does not require any presentment that may be required under subsection (a)(1) — has tellingly little support.

  Second, from Koszola v. F.D.I.C., 393 F.3d 1294 (D.C. Cir. 2005), a First Amendment case:

Nothing in the text of 5 U.S.C. § 1221, however, requires the district court to undertake the "clear and convincing" inquiry in terms of any particular legal "test," multi-factor or otherwise. "Clear and convincing evidence" is a common legal standard. See generally 9 WIGMORE ON EVIDENCE § 2498, at 424 (Chadbourn rev.1981) (standard of clear and convincing proof "commonly applied"); id. at 424-31 (cataloging instances in which standard is applied). Given the familiarity trial judges have with this standard, we do not think it grounds for reversal that the district court did not explicate its ruling according to a particular gloss.

Third, from In re Tennant, 359 F.3d 523 (D.C. Cir. 2004):

Mandamus jurisdiction over agency action lies, if anywhere, in the court that would have authority to review the agency's final decision. See FCC v. ITT World Communications, Inc., 466 U.S. 463, 468-69, 104 S.Ct. 1936, 1939, 80 L.Ed.2d 480 (1984); TRAC, 750 F.2d at 77-79; 16 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3942, at 796 & n.70 (1996).

  It's hard to make very much of this, of course. But assuming Roberts maintains the same practices on the Supreme Court, this evidence from his years on the D.C. Circuit makes it seem a bit less likely that Roberts will differ from the other Justices in his willingness to note or engage with scholarly commentary.

  UPDATE: I rewrote the post after finding a few more examples.