Judge Garland Cited His Own Harv. L.Rev. Article

April 3rd, 2016

In National Association of Home Builders v. EPA (2012), an administrative law case, Judge Garland cited a law review article he had authored in the Harvard Law Review 27 years earlier, Deregulation and Judicial Review:

Second, the petitioners contend that the failure to convene a review panel is evidence that the agency acted arbitrarily and capriciously in contravention of the APA. It is true that the RFA grants us jurisdiction to review claims of noncompliance with section 604, the final regulatory impact analysis provision, “in accordance with” the APA. 5 U.S.C. § 611(a)(2). It is also true, as we said in Allied Local, that although we may not review certain challenges “in terms of the agency’s compliance with the RFA, we may consider them in determining whether EPA complied with the overall requirement that an agency’s decisionmaking be neither arbitrary nor capricious.” 215 F.3d at 79. But the challenges we reviewed inAllied Local were unlike the challenge the petitioners raise here. In that case, the allegations were that, in the course of promulgating a rule, the agency had failed to “respond to significant points raised during the comment period” and “consider significant alternatives to the course it ultimately ch[o]se.” Id. at 80. Those kinds of failings may best be described as “quasi-procedural” rather than “procedural.” “At bottom, they focus not on the kind of procedure that an agency must use to generate a record, but rather on the kind of decisionmaking record the agency must produce to survive judicial review…. Their concern is not with the external process by which litigants present their arguments to the agency, but with the internal thought process by which an agency decisionmaker reaches a rational decision. Thus, these requirements can be said to flow not from the APA’s procedural dictates, but from its substantive command that agency decisionmaking not be `arbitrary’ or `capricious.'” Merrick B. Garland, Deregulation and Judicial Review, 98 HARV. L.REV. 505, 530 (1985); see id. at 510 n. 23, 526-31, 545.

According to WestLaw, Garland’s HLR article has been cited by seven other decisions, including once by Justice Stevens’s dissenting opinion in Pittston Coal Group v. Sebben (1988) and four times by the D.C. Circuit: twice in 1985 by RBG and Judge Wald, in 1986 by RBG again, and by Judge Edwards in 2015. Plus there were two district court decisions, which were quoting from other sources. WestLaw reports that Garland’s Harvard article was cited by 156 other law reviews.

Garland’s other major article in the Yale Law Journal, ANTITRUST AND STATE ACTION: ECONOMIC EFFICIENCY AND THE POLITICAL PROCESS (1987) has been cited by seven courts, including by Justice Kennedy’s majority opinion in North Carolina State Bd. of Dental Examiners v. FTC (2015) (and no, there was not a Garland clerk in AMK’s chambers that term). In 2008, the Ninth Circuit per Judge O’Scannlain specifically referenced Garland’s pre-judicial writing:

Prior to his entering active judicial service, our colleague on the D.C. Circuit, Judge Merrick Garland, expressed the same idea in an article discussing the Supreme Court’s state-action antitrust jurisprudence. He wrote: “The post-Parker cases constitute the Court’s efforts to thread this needle — an effort to protect true state regulation, even if anticompetitive, but to bar mere state `authorization’ of private anticompetitive conduct.” Garland, 96 YALE L.J. at 500-01.

There were also citations by the 2nd Circuit (2010), a concurring opinion by Judge Henry in the 10th Circuit (1997), and the 11th Circuit (1992). As far as I can tell, the D.C. Circuit (including Judge Garland) never cited the Yale article. It has been cited 66 times by other law review articles.

Prof. John Shepard Wiley, Jr. wrote a reply to Garland’s Yale article. Garland, in turn, wrote a surreply, also in the Yale Law Journal, titled ANTITRUST AND FEDERALISM: A RESPONSE TO PROFESSOR WILEY (1987). This surreply has not been cited by any court decisions, but has been cited by  13 other law review articles.

As best as I can tell, these two articles and one essay are the only academic pieces Garland has ever written. (I searched for “Merrick B. Garland” in the Westlaw “Journals and Law Review” Database.) If he participated in any symposia or gave any lectures over the years, none of his remarks were published in law reviews. Judge Garland’s output is below average for D.C. Circuit Judges.

Of the active judges of the court, Judge Henderson has 1 article in the George Washington Law Review (1995), Judge Rogers has zero, Judge Tatel has 14 (although only four of them are in law reviews–the rest are in West’s Education Law Reporter), Judge Brown has 3 (including in the Cato Supreme Court Review), Judge Griffith has four (including his student note in the Virginia Law Review in 1984), Judge Kavanaugh has 6, Judge Srinivasan has 1, Judge Millett has 1, Judge Pillard (the only former academic on the court)  has 9 law review articles (published in 2012, 2007, 2006, 2005, 2005, 2002, 1999, 1998, and her unsigned note in the Harvard Law Review in 1987), and Judge Wilkins has 2.

If we include the senior status Judges, Judge Ginsburg has 40, Judge Edwards has 36, Judge Williams has 29, Judge Sentelle has 15, Judge Randolph has 15, and Judge Silberman has 8. I suspect judges who were confirmed in an earlier era were more likely to write more.