The Empire Strikes Back

DOJ's appellate brief is a hammer

Back when NAR won a surprise victory in court against the Department of Justice, I wrote that an appeal was all but guaranteed and that the DOJ would win on appeal:

Most importantly, in a sense... since this point was basically the thrust of my last post on this topic... this ruling is very likely to be reversed on appeal, and I don't think it takes years to get there.

…

Accordingly, I think this ruling has a rather short shelf life. It is likely to be reversed on appeal, and that appeal is likely to come very soon.

Indeed, the DOJ appealed the decision to the DC Circuit Court of Appeals and now we have their appellate brief to look at.

TL;DR — The DOJ brief is a hammer, and it systematically dismantles the district court’s decision. I fully expect a reversal and a possible additional smackdown of NAR.

I debated back and forth about how to write this one up. I could go long and detailed and into the weeds of the fact pattern, the arguments presented, the legal principles, etc. etc. which interests me and might interest a handful of other law nerds. Or I could point to my previous writeup on the subject, and just do a brief treatment over and above that.

I think I’ll keep it short. Do let me know if you want the full monty treatment of the brief. It sucks to write, since I am an anarcho-capitalist who despises the Deep State. The DOJ is very much part of that Deep State. Yet, intellectual honesty forces me to write what I see, rather than what I wish to see.

As always, this is a post for edutainment. I am not your lawyer, and these are just my opinions as a commentator and observer. Please consult your attorney for actual legal advice.

Let’s get into it.