Law Commons^™

A Process-Based Approach To Presidential Exit, Mark Seidenfeld

Scholarly Publications

No abstract provided.

The Upsides And Downsides Of Ending Chevron Deference, Steve R. Johnson, Kristin E. Hickman, Joseph B. Judkins, Donald B. Susswein

Scholarly Publications

No abstract provided.

The Long Shadow Of Judicial Review, Mark Seidenfeld

Scholarly Publications

No abstract provided.

Agency Motivations In Exercising Discretion, David L. Markell

Scholarly Publications

No abstract provided.

Technological Innovation, Data Analytics, And Environmental Enforcement, David L. Markell, Robert L. Glicksman, Claire Monteleoni

Scholarly Publications

Technical innovation is ubiquitous in contemporary society and contributes to its extraordinarily dynamic character. Sometimes these innovations have significant effects on the environment or on human health. They may also stimulate efforts to develop second-order technologies to ameliorate those effects. The development of the automobile and its impact on life in the United States and throughout the world is an example. The story of modern environmental regulation more generally includes chapters filled with examples of similar efforts to respond to an enormous array of technological advances.

This Article uses a different lens to consider the role of technological innovation. In …

Inefficient Inequality, Shi-Ling Hsu

Scholarly Publications

For the past several decades, much American lawmaking has been animated by a concern for economic efficiency. At the same time, broad concerns over wealth and income inequality have roiled American politics, and still loom over lawmakers. It can be reasonably argued that a tension exists between efficiency and equality, but that argument has had too much purchase over the past few decades of lawmaking. What has been overlooked is that inequality itself can be allocatively inefficient when it gives rise to collectively inefficient behavior. Worse still, some lawmaking only masquerades as being efficiency-promoting; upon closer inspection, some of this …

Revisiting Congresssional Delegation Of Interpretative Primacy As The Foundation For Chevron Defense, Mark Seidenfeld

Scholarly Publications

Although congressional delegation is the rationale used most often to justify the Chevron doctrine, most scholars who have written about this justification have recognized that it is a fiction, albeit, they claim, a useful one. In “Chevron’s Foundation,” I proposed an alternative foundation for the Chevron doctrine—a judicial self-limitation justification for Chevron deference—based on an implicit understanding of Article III that courts should not resolve cases by making policy choices where alternative means for deciding these cases exists. In this essay, I first revisit my original critique of the delegation rationale and explicitly respond to the arguments …

The Future Of American Tax Administration: Conceptual Alternatives And Political Realities, Steve R. Johnson

Scholarly Publications

No abstract provided.

Dynamic Governance In Theory And Application, Part I, David L. Markell, Robert L. Glicksman

Scholarly Publications

This Article is the first of two that grapple with a central policy challenge facing the administrative state: how to govern in times of dynamic change when challenges, and opportunities to address them, are both shifting rapidly. It suggests that, conceptually, process design that is likely to produce effective regulatory governance requires attention to three key distinct but interrelated variables: (1) the actors who are or should be involved in program implementation in different capacities; (2) the mechanisms (legal and otherwise) available to promote good governance; and (3) the tools available to advance desired results. To demonstrate the value of …

The Dangerous Right To Food Choice, Samuel R. Wiseman

Scholarly Publications

Scholars, advocates, and interest groups have grown increasingly concerned with the ways in which government regulations—from agricultural subsidies to food safety regulations to licensing restrictions on food trucks—affect access to local food. One argument emerging from the interest in recent years is that choosing what foods to eat, what I have previously called “liberty of palate,” is a fundamental right.1 The attraction is obvious: infringements of fundamental rights trigger strict scrutiny, which few statutes survive. As argued elsewhere, the doctrinal case for the existence of such a right is very weak. This Essay does not revisit those arguments, but instead …

How Would The Supreme Court Rule On Loving And Ridgely?, Steve R. Johnson

Scholarly Publications

On March 3 the Supreme Court unanimously decided Direct Marketing Association v. Brohl, a case arising under the Tax Injunction Act {TIA). The focus of this article is not on Brohl on its own terms but on the implications of Brohl· for the Loving line of cases and for future cases that may arise out of Loving. I believe Brohl reveals that the Supreme Court would likely uphold the approach taken in Loving were a case of this kind to reach the Court. For that reason, the government was wise not to seek Supreme Court review of Loving. Unless it …

How Far Does Circular 230 Exceed Treasury’S Statutory Authority?, Steve R. Johnson

Scholarly Publications

Treasury regulations defining the duties of those practicing before the IRS, commonly called Circular 230, are a cornerstone of federal tax practice. Recent judicial decisions, however, raise the genuine possibility that substantial portions of Circular 230 may be invalidated if challenged.

This possibility began to be taken seriously as a result of the 2013 opinion in Loving v. IRS, the 2014 affirmation of that judgment, and the government’s decision not to seek en banc or Supreme Court review. The concerns intensified with the July 2014 decision in Ridgely v. Lew. They may intensify further – or be deflated – by …

Standing In The Wake Of Statutes, Mark Seidenfeld, Allie Akre

Scholarly Publications

In Lujan v. Defenders of Wildlife, the Supreme Court held that when Congress creates a legal interest to see that the law is followed, the deprivation of that interest, without more, is insufficient to allow a plaintiff to meet Article III’s standing requirements. Lujan created significant uncertainty about Congress’s ability to influence judicial standing inquiries by creating statutory rights, especially in light of Justice Kennedy’s concurrence and the majority’s footnote seven. This Article argues that Kennedy’s concurrence and footnote seven are best explained by recognizing that Congress is institutionally superior to courts in evaluating the gravity of likely harms …

Tax Credits On Federally Created Exchanges: Lessons From A Legislative Process Failure Theory Of Statutory Interpretation, Mark Seidenfeld

Scholarly Publications

Opponents to the Patient Protection and Affordable Care Act (ACA or Act) have mounted yet another seemingly formidable challenge to basic provisions of the Act, focusing on whether the Act authorizes insurance premium tax credits for individuals who obtain insurance on an American Health Benefit Exchange (Exchange) established by the federal government. The argument against construing the Act to allow such tax subsidies depends largely on applying technical tools of statutory interpretation, usually associated with the Textual school of interpretation, to various provisions of the Act to discern that the best objective reading authorizes premium tax credits only to individuals …

The Rise And Fall Of Chevron In Tax: From The Early Days To King And Beyond, Steve R. Johnson

Scholarly Publications

No abstract provided.

The Implementation Of The Food Safety Modernization Act And The Strength Of The Sustainable Agriculture Movement, Samuel R. Wiseman

Scholarly Publications

In the wake of growing public concerns over salmonella outbreaks and other highly publicized food safety issues, Congress passed the FDA Food Safety Modernization Act in 2011, which placed more stringent standards on food growing and packaging operations. In negotiations preceding the Act's passage, farmers of local, sustainable food argued that these rules would unduly burden local agricultural operations or, at the extreme, drive them out of business by creating overly burdensome rules. These objections culminated in the addition of the Tester-Hagan Amendment to the Food Safety Modernization Act, which created certain exemptions for small farms. Proposed Food and Drug …

The Accidental Postmodernists: A New Era Of Skepticism In Environmental Law, Shi-Ling Hsu

Scholarly Publications

No abstract provided.

Reasoned Explanation And Irs Adjudication, Steve R. Johnson

Scholarly Publications

Under the Administrative Procedure Act (APA), an administrative action can be invalidated as arbitrary and capricious if the agency fails to sufficiently explain the reasons for its choices. This principle applies to agency adjudication as well as to agency rulemaking. How does this principle apply to IRS adjudications? Examining five paradigms of IRS decisionmaking, this Article first establishes that the IRS does engage in APA–style adjudication. The Article then examines tax-specific explanation requirements and asks whether a more robust explanation duty patterned on the APA should be imposed on IRS determinations. Based on a variety of legal and prudential considerations, …

A Positive Defense Of Administrative Preemption, Mark Seidenfeld, Joshua Hawkes

Scholarly Publications

No abstract provided.

A Process Failure Theory Of Statutory Interpretation, Mark Seidenfeld

Scholarly Publications

Despite all that has been written about the choice between purposivist, intentionalist, and textualist approaches to statutory interpretation, to date the literature has not provided a justification for the common judicial practice of relying on intent-based inquiries in some cases and disavowing those approaches for textualism in others. This Article fills that void and, in doing so, lays out a new “legislative process failure” theory of statutory interpretation that has the potential to move the debate beyond a simple choice between textual and intent-based interpretation. This Article argues that Congress and the courts comprise different linguistic communities when they interpret …

Loving And Legitimacy: Irs Regulation Of Tax Return Preparation, Steve R. Johnson

Scholarly Publications

No abstract provided.

Reflections On Home Concrete, Steve R. Johnson

Scholarly Publications

Positive statutory law – principally the Internal Revenue Coe – is the most important source of tax rules. Despite its volume, however, the Code contains many gaps. Tax regulations promulgated by the Department of the Treasury are the principal vehicles for filling the most important gaps.

When consistent with the Code and issued pursuant to proper procedures, Treasure Regulations have the force of law. The validity of Treasury Regulations has been a major battleground in contemporary tax litigation. In the last five years alone, the issue has arisen in high profile cases such as Swallows, Mannella, Lantz, Mayo, Dominion Resources, …

Remedying Regulatory Diseconomies Of Scale, Hannah J. Wiseman

Scholarly Publications

Rules in the modern administrative state tend to lag behind reality, and a key contributor to this stickiness – the volume of regulated activity – is largely ignored. When legislators or agency staff initially write rules to constrain the externalities of an activity, they assume that the activity will occur at a particular scale. Based on the known impacts at this scale, policymakers and regulators balance the harms of the regulated activity against the costs of regulation to industry, striking a compromise within the chosen rule or choosing to not regulate at all.

If the activity later expands from this …

Note, Institutionally Appropriate Approaches To Privacy: Striking A Balance Between Judicial And Administrative Enforcement Of Privacy Law, Lauren Henry Scholz

Scholarly Publications

No abstract provided.

The Role Of Politics In A Deliberative Model Of The Administrative State, Mark Seidenfeld

Scholarly Publications

Since at least the mid-1980s, some scholars of United States administrative law have touted deliberative democracy as a promising theory to justify the modern administrative state. Those who advocate deliberative administration, however, have not easily incorporated the role of democratic politics into their models of that state.

This Article begins by reviewing the historical development of the most prevalent model of political influence on agencies—the presidential control model—and summarizes arguments supporting that model. It proceeds to criticize the presidential control model for failing to promote the goals of a deliberative regulatory state. It then presents deliberative justifications for the administrative …

Auer/Seminole Rock Deference In The Tax Court, Steve R. Johnson

Scholarly Publications

No abstract provided.

Administrative Proxies For Judicial Review: Building Legitimacy From The Inside-Out, David L. Markell, Emily Hammond

Scholarly Publications

Judicial review is considered an indispensable legitimizer of the administrative state. Not only is it a hallmark feature of the Administrative Procedure Act (“APA”), but the various standards of review reinforce democratic norms, promote accountability, and act as a check against arbitrariness. Unreviewable agency actions, therefore, must find their legitimacy elsewhere. This article evaluates the promise of “inside-out” legitimacy as an alternative or complement to judicial review. We theorize, based on insights from the administrative law and procedural justice literatures, that administrative process design can do much to advance legitimacy without the need to rely on judicial review to check …

Auer/Seminole Rock Deference In The Tax Court, Steve R. Johnson

Scholarly Publications

No abstract provided.

Liberty Of Palate, Samuel R. Wiseman

Scholarly Publications

As lawmakers concerned with problems as diverse as childhood obesity, animal cruelty, and listeria have increasingly focused their attention on consumers, legal issues surrounding food choice have recently attracted much broader interest. Bans on large sodas in New York City, fast food chains in South Los Angeles, and foie gras in California and Chicago have provoked national controversy, as have federal raids on raw milk sellers. In response, various groups have decried restrictions on their ability to consume the food products of their choice. A few groups have organized around the principle of what we might call liberty of palate, …

Preserving Fairness In Tax Administration In The Mayo Era, Steve R. Johnson

Scholarly Publications

One of the dominant themes in contemporary federal taxation is bringing tax administration within the fold of general administrative law. In 2011, the United States Supreme Court unambiguously embraced this movement in the landmark case Mayo Foundation for Medical Education & Research v. United States, in which the Court held that challenges to the validity of Treasury regulations generally are governed by the Chevron standard to the same extent as are regulations issued by other administrative agencies.

There was an immediate and strong hostile reaction to Mayo in tax circles. Many fear that Mayo dramatically tips the balance in favor …