Law Commons^™

The Anti-Injunction Act And The Individual Mandate, Steve R. Johnson

Scholarly Publications

The Supreme Court will soon consider challenges to constitutionality of the so-called individual mandate portion of the Patient Protection and Affordable Care Act of 2010 (PPACA). It is important for the nation that the Court render a decision on the merits. This could be derailed, however, were the Court to dispose of the case by holding that the Anti-Injunction Act (AIA) and the Declaratory Judgment Act (DJA) preclude pre-enforcement review. Disposition on those grounds would subject the federal government, states, businesses, and individuals to years of additional uncertainty, inconvenience, and expense.

Fortunately, that threat to resolution on the merits can …

Welfare Enhancing Regulation Exemptions, Murat C. Mungan

Scholarly Publications

Sanctions for regulation violations are used to deter conduct which could potentially result in great social harms. This practice over-deters talented entities and under-deters untalented entities, which leads to social losses. This paper analyzes whether and how such social losses can be mitigated. I show that this can be achieved by allowing regulatees to purchase passes exempting them from regulations at appropriate prices.

False Efficiency And Missed Opportunities In Law And Economics, Shawn J. Bayern

Scholarly Publications

This Article points out a simple flaw common to many law-and-economics analyses, ranging from fundamental models like the Hand Formula to narrower arguments like those that oppose the doctrine of unconscionability.

The flaw is straightforward: economic analyses of law often assume, either implicitly or explicitly that when it is more efficient for an activity to occur than for it not to occur it is efficient for legal rules to encourage the activity. Even on grounds of efficiency alone, however, knowing in isolation whether an activity produces more wealth than its absence is insufficient to conclude that the activity is efficient. …

Organizational Apologies: Bp As A Case Study, Erin O'Hara O'Connor

Scholarly Publications

On April 20, 2010, the Macondo oil well ruptured during the final phases of exploratory drilling. Methane gas and other substances spewed from the well onto the Deepwater Horizon drilling platform causing an explosion and fire that killed eleven crewmen and ultimately sank the platform. Over the next three months, the well, located approximately 250 miles southeast of Houston, Texas, spilled as much as 184 million gallons of oil into the Gulf of Mexico. In the aftermath, the U.S. government banned deepwater drilling for several months while applicable regulations were toughened.

The well’s majority owner was BP PLC, formerly known …

Taxes, Free Expression, And Adult Entertainment, Steve R. Johnson

Scholarly Publications

The interaction of morality and money produces interesting results. One manifestation is legislation in some states and proposals in others to impose higher taxes on “gentlemen’s show lounges” (OK, I mean strip clubs) and other venues of adult entertainment.

In 2010 and 2011 two state supreme courts passed on the legality of different forms of those taxes, upholding them against challenges that they infringed on free speech/free expression rights protected by the First Amendment of the U.S. Constitution. This installment of the column considers those two decisions: the February 2010 Utah decision in Bushco v. Utah State Tax Commi …

Cohen: Hard Case Makes (Semi) Bad Law, Steve R. Johnson

Scholarly Publications

The first Justice Harlan famously cautioned that hard cases can lead to bad law. United States v. Clark, 96 U.S. 37, 49 (1878) (dissenting opinion). This aphorism captures the reality that, when confronted with litigating equities strongly favoring one party, judges tend to massage doctrine to support judgment for that party.

The Bonds That Tie: The Politics Of Motherhood And The Future Of Abortion Rights, Mary Ziegler

Scholarly Publications

What is the relationship between women’s still predominant share of caretaking work and the constitutional recognition of a right to choose abortion? Caretaking-based rationales for abortion rights have become increasingly prominent in the Supreme Court's abortion jurisprudence, as well as in abortion-rights litigation. These justifications propose that women tend overwhelmingly to raise their own children. Consequently, as the argument goes, the decision to give birth creates a lifetime commitment for most women, and in some cases, may cost women valuable career or educational opportunities.

When care taking-based rationales first appeared in the early 1970s in debate about rights to both …

The Unaffordable Health Act: A Response To Professors Bagley And Horwitz, Jeffrey H. Kahn, Douglas A. Kahn

Scholarly Publications

No abstract provided.

New Light On Auer/Seminole Rock Deference, Steve R. Johnson

Scholarly Publications

We have been engaged in an extended exploration of doctrines under which courts may defer to positions and interpretations by state and local tax agencies. The immediately prior installment of this column discusses such deference under state equivalents of what is known as the Auer or Seminole Rock principle, under which courts usually defer to agency interpretations of the agencies’ own ambiguous regulations.

About two weeks after the publication of that installment, the U.S. Supreme Court handed down a major new decision on the Auer principle: Talk America, Inc. v. Michigan Bell Telephone Co. Talk America bids fair to be …

The Operation Of The Individual Mandate, Jeffrey H. Kahn

Scholarly Publications

In this article, Kahn describes the technical operation of omportion portions of the individual healthcare mandate, including the application of the penalty provision. Kahn finds that there are problems with the technical drafting of that provision and that serious gaps and ambiguities abound.

Live Hearings And Paper Trials, Emily Spottswood

Scholarly Publications

This Article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing or trial, and when would it be better to rely on a written record? Unfortunately, when judges, lawyers, and rulemakers consider this issue, they are led astray by the widely shared—but false—assumption that a judge can best determine issues of credibility by viewing the demeanor of witnesses while they are testifying. In fact, a large body of scientific evidence indicates that judges are more likely to be deceived by lying or mistaken witnesses when observing live testimony than if the judges were to review …

Edelin: The Remaking Of A Headline Abortion Trial, Mary Ziegler

Scholarly Publications

When did we leave the era of headline abortion trials behind us? Conventional historical accounts suggest that high-profile criminal trials were a defining feature of the legal and political landscape before Roe. Although relatively infrequent before Roe, blockbuster trials had tremendous symbolic importance, offering evidence of when abortion would be publicly denounced rather than privately tolerated. Notorious abortion trials fell into several different categories: soap operas involving complex social entanglements and prosecutions of practitioners who were celebrities in their own right.

Roe v. Wade is thought to have put an end to the era of the high-profile abortion trial. In …

Deference To Tax Agencies' Interpretation Of Their Regulations, Steve R. Johnson

Scholarly Publications

This installment closes a loop begun in the last installment of this column. We have been exploring the degrees of deference accorded by the courts to interpretations and positions taken by state and local revenue agencies. The last installment examined conditional deference doctrines, that is, deference specific to particular situations or conditioned on the existence of particular conditions. That installment noted one line of conditional deference, applying to cases in which agencies are interpreting their own regulations. This is often called Auer deference, after one of the most prominent cases of the line. Because of the richness of the Auer …

Mcdonald's Other Right, Samuel L. Wiseman

Scholarly Publications

No abstract provided.

Conditional Deference To Tax Authorities, Steve R. Johnson

Scholarly Publications

Recent installments of this column have explored an important point of intersection between administrative law and tax law: the degree of deference that courts accord to rules, regulations, and statutory interpretation positions of state and -local revenue agencies. This column continues that exploration. It examines what I call “conditional deference,” that is, according deference to the agency only when particular, defined conditions are present.

The first part below sets the context by describing Skidmore and Mead, two leading federal conditional deference cases. The second part contrasts state conditional deference doctrines, with particular emphasis on the operation of those doctrines in …

Do Treasury And The Irs Have To Explain Their Choices?, Steve R. Johnson

Scholarly Publications

The validity of tax regulations has been challenged by taxpayers almost as long as there have been tax regulations. Now, however, we are in a period of unusually high activity on this front. The Supreme Court recently upheld the validity of a regulation under section 3121 in Mayo Foundation for Medical Ed. and Research v. United States, 131 S. Ct. 704 (2011); many cases are testing the validity of regulations extending the six-year statute of limitations under section 6501(e) to basis overstatements (or, as the Service would put it, clarifying the law in this regard); and many cases are …

Formulating A Law Of Sustainable Energy: The Renewables Component, Hannah J. Wiseman, Lindsay Grisamer, E. Nichole Saunders

Scholarly Publications

No abstract provided.

Disgust And The Problematic Politics Of Similarity, Courtney Megan Cahill

Scholarly Publications

No abstract provided.

Complex Financial Institutions And Systemic Risk, Manuel A. Utset

Scholarly Publications

No abstract provided.

Mayo And The Future Of Tax Regulations, Steve R. Johnson

Scholarly Publications

Of the heady early days of the French Revolution, Wordsworth wrote: “Bliss it was in that dawn to be alive. But to be young was very heaven.” Those of us interested in the intersection of tax law and administrative law may be excused if we feel similar exhilaration about the time in which we live.

In terms of the intersection, this is the most exciting moment in the tax history of the United States. Recent cases have tested – and cases still in progress continue to test –- the validity of several Treasury regulations:

1. On January 11 the Supreme …

Chevron Deference To State Tax Agencies, Steve R. Johnson

Scholarly Publications

The last installment of this column inaugurated a multi-installment project examining judicial doctrines of deference to interpretations and positions taken by state and local tax agencies. We noted that in the various states, these doctrines fall into about a half dozen categories.

This installment explores one of those categories. A major deference rule in federal administrative law (including tax law) emanates from the U.S. Supreme Court’s famous Chevron case. This installment considers the extent to which Chevron and similar approaches are applied in state and local tax cases.

The first part be low briefly describes C …

Following The Apa Will Not Eliminate Useful Guidance, Steve R. Johnson

Scholarly Publications

No abstract provided.

Trade Secrets, Disclosure, And Dissent In A Fracturing Energy Revolution, Hannah J. Wiseman

Scholarly Publications

In the United States, Congress has traditionally relied, in part, upon citizen participation to control industrial activity and its effects on public welfare. It has also required industry to disclose certain information to the public in order to enable this participation. Early on in the movement toward expanded federal regulation of industry, Congress granted broad standing to individuals in generous “private attorney general” provisions in environmental and business-related statutes. It also required agencies to follow strict notice-and-comment rulemaking procedures, which directed agencies to publicize proposed rules and receive citizen comments. Through statutes such as the Emergency Planning and Community Right-to-Know …

Expanding Regional Renewable Governance, Hannah J. Wiseman

Scholarly Publications

Energy drives economies and quality of life, yet accessible traditional fuels are increasingly scarce. Federal, state, and local governments have thus determined that renewable energy development is essential and have passed substantial requirements for its use. These lofty goals will fail, however, if policymakers rely upon existing institutions to govern renewable development. Renewable fuels are fugitive resources, and ideal property for renewable technology is defined by the strength of the sunlight or wind that flows over it. When a potential site for a utility-scale development is identified, a new piece of property, which I call a “renewable parcel,” is superimposed …

Substituting Substantive For Procedural Review Of Guidance Documents, Mark Seidenfeld

Scholarly Publications

No abstract provided.

Chevron's Foundation, Mark Seidenfeld

Scholarly Publications

This Article addresses the question of how a court can justify deferring to an administrative agency interpretation of a statute under the Chevron doctrine given the accepted understanding that Article III of the Constitution makes the judiciary the ultimate decider of the meaning of law in any case or controversy that is properly before a court. It further considers the ramifications of the answer to that question on the potential forms that any doctrine of interpretive deference may assume.

This Article first rejects congressional intent to delegate interpretive primacy to agencies as the basis for Chevron. It argues that such …

The Most Ethical Of People, The Least Ethical Of People: Proposing Self-Determination Theory To Measure Professional Character Formation, Lawrence S. Krieger

Scholarly Publications

No abstract provided.

The Unintended Consequences Of Local Rules, Justin Sevier

Scholarly Publications

Many legal rules are based on hunches about human behavior that have not been tested empirically. A behavioral analysis of these rules can illuminate whether they work as policy makers intended or whether they have unforeseen, systematically negative effects. Behavioral analyses of legal rules, unfortunately, are in short supply. This is particularly true with respect to local procedural rules that govern the everyday operation of trials and are left to the discretion of trial courts.

This Article begins to fill that gap by empirically examining one of these local procedural rules: the one allowing jurors to take notes during trial. …

"Mosaic Theory" And Megan's Laws, Wayne A. Logan

Scholarly Publications

This essay urges reexamination of the privacy implications of registration and community notification (RCN) laws, commonly known as Megan’s Laws. Applying the analytic construct recently employed by the D.C. Circuit in United States v. Maynard to conclude that extended use of a GPS tracking device constitutes a search for Fourth Amendment purposes, the essay argues that the collection and aggregation of registrant data entailed in RCN implicates a protectable Fourteenth Amendment privacy interest. In both contexts, the government collects nominally public data – in Maynard, car travel, with RCN, registrants’ home/work/school addresses, physical traits, etc. – and creates an informational …

Megan's Laws As A Case Study In Political Stasis, Wayne A. Logan

Scholarly Publications

No abstract provided.