"Something you learn from watching a few oral arguments over questions of federal procedure is that the action doesn't lie in the moments when the sparring attorneys read off of their briefs. Instead it comes in the moments when a judge interrupts them to ask questions and probe their arguments. These interruptions and probes give a sense of what a judge thinks about the quality of a lawyer's argument."
"Liman didn't interrupt MTA attorney Roberta Kaplan very much. But he did treat Department of Justice attorney Eric Hamilton like a Gleason's speed bag, immediately interrupting his opening remarks with a series of questions regarding whether the federal government is claiming that all of its contracts are "at-will," which is to say not contracts at all. (Streetsblog readers will recall the disgust with which noted legal scholar Roderick Hills greeted this argument previously.)"
Judicial questioning during oral argument revealed skepticism toward the federal government's claim that it can unilaterally terminate congestion pricing. The MTA contends the Value Pricing Pilot Program grants it exclusive authority to end congestion pricing, while the U.S. DOT asserts an unwritten right to terminate the program. Judge Lewis Liman rarely interrupted the MTA attorney but repeatedly probed the DOJ attorney about whether the federal government treats its contracts as effectively at-will and whether proper administrative procedures were followed before the Transportation Secretary's termination letter. Liman challenged the evidentiary basis for the federal position and stressed potential destructive consequences of that argument.
Read at Streetsblog
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