• The D C Circuit still is pretty quiet, but today it turned away a union challenge to a smoking ban in the workplace.  The agency defendant handled the arbitration where the union grieved the smoking ban, but didn't mention said ban in its arbitral decision.  The court concluded that because the agency hadn't treated the ban like an unfair labor practice, the court didn't have jurisdiction to assess whether it was one, which was the only grounds it had for review.  David Tatel dissented from this somewhat odd conclusion - that the agency essentially, can define its own jurisdiction by limiting what it says in its adjudications - with a lengthy post that really gets into the labor law weeds.  The case, Association of Civilian Technicians v. FLRA, is here.

• Richard Lazarus and Orin Kerr are considering what to make of the shrinking size, and increasing quality, of the Supreme Court bar.  Both appear to suppose that the quality of the advocacy before that Court matters, in anything other than an aesthetic sense.  I'll look forward to reading more about why.

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