Banner Day at D.C. Circuit:

The U.S. Court of Appeals for the D.C. Circuit handed down six published opinions today, several of which seem notable (though I have not had the chance to read them all yet). Among today's opinions are:

  • - Doe v. ExxonMobil Corp., a divided opinion on the justiciability of claims brought under the Alien Tort Statute and the Torture Victims Protection Act, in addition to various common law claims, based upon ExxonMobil's alleged complicity with human rights abuses in Indonesia. Judge Sentelle wrote the majority for himself and Judge Edwards; Judge Kavanaugh dissented.

  • - United States v. Henry, another opinion sorting out the implications of Booker (among other things). The court's opinion is per curiam, but Judges Henderson and Kavanaugh wrote separate concurring opinions.

  • - NARUC v. FERC, an otherwise unanimous opinion reviewing a Federal Energy Regulatory Commission order splits over the question of whether FERC has the authority to adopt rules that regulate the use of the states' eminent domain power by or on behalf of utilities. Judge Sentelle's partial dissent says the answer is "no." Judge Williams' majority opinion argues FERC is not really regulating the states' use of eminent domain.

  • - CREW v. FEC, a opinion finding that Citizens for Responsibility and Ethics in Washington lacked standing to challenge the Federal Election Commission's resolution of its complaint alleging that Grover Norquist and Americans for Tax Reform illegally gave the Republican Party an in-kind corporate contribution, in the form of a list of conservative activists.

I've oversimplified these cases in my summaries (in part because I've only skimmed them myself), so I apologize in advance if I've missed important aspects of these cases. I hope to post more on at least some of them, even if only to provide links to fuller discussions and analyses on other blogs.

UPDATE: At Sentencing Law & Policy, Doug Berman comments on United States v. Henry, a "must read" opinion, and explains why the D.C. Circuit and Judge Kavanaugh are so money. "Baby, that was money! Tell me that wasn't money."

Judge Kavanaugh's analysis of the de-facto mandatory nature of the post-Booker sentencing guidelines is a must read. Even if the Supreme Court fixes the problem on the federal level (on statutory grounds), I highly doubt it would intervene to strike down similar systems of "advisory" guidelines as exists on a state level. This is because intervening to smoke out unconstitutional government practices which are only unconstitutional because of their effect, but pay lip service to the rules in form, is an approach favored only by pragmatists. Since almost all pragmatic judges reject the utility of the Apprendi line of cases, there is no one left to, on constitutional grounds, void sentencing schemes which pay lip service to the rules announced in Blakely/Booker but don't operate that way in effect. We no longer see the old type of "activist" Supreme Court opinions that would void government laws and practices because of a substantial risk of an unconstitutional application, other than on grounds already established by pre-Burger court precedents (void for vagueness, overbreadth, chilling effect, etc.)
1.12.2007 12:12pm
"The court's opinion is per curiam, but Judges Henderson and Kavanaugh wrote separate concurring opinions."
This baffles me. What is the point of a "per curiam" opinion, then? Once or twice, I've even seen one with a dissent.
1.12.2007 1:19pm
John M. Perkins (mail):
"Per curium" doesn't mean unanimous.
Instead it means an opinion when no-one on the court is willing to put there name to the opinion. Often "per curium" is used for boiler plate affirmances or denials of cert. Sometimes "per curium" means such a compromised majority opinion than no judge wants to be firmly with the sausage making.
That a judge might want to be named in a concurrance or dissent make sense.
1.12.2007 4:10pm