If you're sufficiently adlaw-obsessed to be reading this blog regularly, you need to know about John J. Dowling, III. He's a recent Syracuse Law grad (still waiting to take the bar exam, poor guy) with nearly a decade of experience in state and federal criminal defense. John is also smart--a quick glance at the list of accolades he accumulated during law school is proof enough of that:
And John did all that while holding down serious jobs all three years of law school, including spending two of the three years assisting the Office of the Federal Public Defender for the Northern District of New York in defending indigent criminal defendants charged with a range of offenses including bribery, wire, bank, and social security fraud, international money laundering, death threats against public officials, identity theft, child pornography, drug, and firearms offenses, and a capital punishment case. Impressive.
So why am I going on about him on a blog dedicated to admin law in the Fifth Circuit? Well, I learned first-hand just how sharp John is recently when he reached out to discuss my prior posts questioning the post-Kisor viability of judicial deference to the commentary on unambiguous provisions of the Sentencing Guidelines--a doctrine that traces its origins to Justice Kennedy's opinion for the Supreme Court in Stinson v. United States, 508 U.S. 36, 38 (1993). In those posts, I argued that Kisor had effectively overruled Stinson by listing it among the many cases that had sent the "mixed signals" regarding the scope of Seminole Rock/Auer deference that triggered the Court in Kisor to articulate a new-and-significantly-narrower Auer standard.
I'll admit I was pretty proud of that point until John called me up and pointed out a blind spot in my reasoning. He argued that Stinson is actually a distinct judicial-deference doctrine. While the Court cited Seminole Rock in Stinson, John astutely pointed out that it did so only by analogy. And most important, unlike all the Supreme Court's other judicial-deference cases, Stinson alone actually held that deference was appropriate regardless of whether the provision of law under inspection was ambiguous. Because John views Stinson as a standalone deference doctrine, he wasn't convinced by my argument that Kisor overruled it by implication.
At first, John's point confused me. I couldn't understand why any criminal defense attorney (or, in John's case, soon-to-be criminal defense attorney) would resist my conclusion that Kisor overruled Stinson. After all, deference to the commentary generally works against criminal defendants. John responded with two justifications for his aversion to lumping Stinson in with Auer-Kisor-Seminole Rock-etc. First, he believes his view is technically correct and thus intellectual honesty requires that he stick with it. Fair enough. Second, he pointed out that others have already made my Kisor-overruled-Stinson argument in court but to no avail.
In the end, I'm still not 100% convinced that John is right that Stinson is a standalone form of judicial deference, but he has convinced me that my own Kisor-effectively-overruled-Stinson argument was sloppy and likely wrong.
Bottom line: this dude isn't even a lawyer yet and doesn't have any particular expertise in administrative law, and yet he straight-up schooled me on the implications of Kisor. I realize I'm not the sharpest tool in the shed, but my experience with this subject in particular gave me a massive head start on John in this debate. The fact that he still managed to force me to admit error and rethink my position is a testament to just how sharp he really is (and, I suppose, how dull I really am!).
Anyway, as is evident at this point, I was very impressed with John's thinking on this issue and thought he deserved some credit for it. I realize a hat tip from an associate at a Houston law firm may not mean much, but I hope this post will cause a few of you to remember his name and keep an eye out for him at least. He's the real deal.