Last week, Professor Peter Shane shared an interesting message with a list-serv of his fellow administrative-law professors. We found it both useful and amusing, so we thought we’d share it with you (with Professor Shane’s permission):
The latest brief in the D.C. Circuit from Noel Canning Co. shows the dangers of allowing spell-check to do your proofreading. After the Supreme Court held Obama’s recess appointments invalid, the reconstituted NLRB revisited the case and again decided against Noel Canning. The Board did this although it appears there had never been an order from the D.C. Circuit technically remanding the case to the Board. Noel Canning now argues the NLRB lacked jurisdiction to render its decision. Here’s the final argument heading as it appears in the company brief’s Table of Contents:
“Allowing The Board To Read This Court’s Judgment And Mandate As Allowing Further Proceedings Would Diminish The Concept Of Banality And Prejudice Litigants For Complying With The Plain Meanings Of Court Judgments.”
I, for one, hope never to see the concept of banality diminished. (The inside text correctly reads “Finality.”)
Fear not, Professor Shane. Banality in the legal profession isn’t going anywhere.
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Noel Canning v. NLRB: Brief for Petitioner [U.S. Court of Appeals for the D.C. Circuit via NLRB]