Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 7 of 7
Full-Text Articles in Law
Predicting The Fallout From King V. Burwell - Exchanges And The Aca, Nicholas Bagley, David K. Jones, Timothy Stoltzfus Jost
Predicting The Fallout From King V. Burwell - Exchanges And The Aca, Nicholas Bagley, David K. Jones, Timothy Stoltzfus Jost
Timothy S. Jost
The U.S. Supreme Court's surprise announcement on November 7 that it would hear King v. Burwell struck fear in the hearts of supporters of the Affordable Cara Act (ACA). At stake is the legality of an Internal Revenue Service (IRS) rule extending tax credits to the 4.5 million people who bought their health plans in the 34 states that declined to establish their own health insurance exchanges under the ACA. The case hinges on enigmatic statutory language that seems to link the amount of tax credits to a health plan purchased "through an Exchange established by the State." According to …
Jurisdictional Standards (And Rules), Adam I. Muchmore
Jurisdictional Standards (And Rules), Adam I. Muchmore
Adam I. Muchmore
This Article uses the jurisprudential dichotomy between two opposing types of legal requirements — “rules” and “standards” — to examine extraterritorial regulation by the United States. It argues that there is natural push toward standards in extraterritorial regulation because numerous institutional actors either see standards as the best option in extraterritorial regulation or accept standards as a second-best option when their first choice (a rule favorable to their interests or their worldview) is not feasible. The Article explores several reasons for this push toward standards, including: statutory text, statutory interpretation theories, the nonbinary nature of the domestic/foreign characterization, the tendency …
Can An Oil Pit Take A Bird?: Why The Migratory Bird Treaty Act Should Apply To Inadvertent Takings And Killings By Oil Pits, Monica B. Carusello
Can An Oil Pit Take A Bird?: Why The Migratory Bird Treaty Act Should Apply To Inadvertent Takings And Killings By Oil Pits, Monica B. Carusello
Monica B Carusello
No abstract provided.
Reading Statutes In The Common Law Tradition, Jeffrey A. Pojanowski
Reading Statutes In The Common Law Tradition, Jeffrey A. Pojanowski
Jeffrey A. Pojanowski
There is wide agreement in American law and scholarship about the role the common law tradition plays in statutory interpretation. Jurists and scholars of various stripes concur that the common law points away from formalist interpretive approaches like textualism and toward a more creative, independent role for courts. They simply differ over whether the common law tradition is worth preserving. Dynamic and strongly purposive interpreters claim the Anglo-American common law heritage in support of their approach to statutory interpretation, while arguing that formalism is an unjustified break from that tradition. Formalists reply that the common law mindset and methods are …
It's Time For The Supreme Court To Review The Economic Substance Doctrine, Andy Grewal
It's Time For The Supreme Court To Review The Economic Substance Doctrine, Andy Grewal
Andy Grewal
In United States v. Woods, this writer submitted an amicus brief arguing that the Supreme Court should reserve its judgment about the economic substance doctrine, which the district court had applied below. The Supreme Court agreed with that argument, expressly leaving its opinion about the proper application of the economic substance doctrine to a future case.That future case has arrived. This amicus brief, supporting the taxpayer’s petition in WFC Holdings v. United States, explains why this case presents the perfect opportunity for the Court to explain what weight, if any, legislative enactments enjoy in deciding economic substance cases. Although this …
Will The Economic Substance Doctrine Get Lost In The Woods? (Amicus Brief), Andy Grewal
Will The Economic Substance Doctrine Get Lost In The Woods? (Amicus Brief), Andy Grewal
Andy Grewal
This fall, the Supreme Court will hear oral arguments in U.S. v. Woods, a tax case involving complex jurisdictional and penalty issues that no emotionally healthy person should take an interest in. But behind those issues lie important questions about the economic substance doctrine, which involves the allocation of lawmaking authority between the legislature and the judiciary.This amicus brief, submitted in support of neither party, informs the Court about the issues hiding in this case. It urges the Court to take a cautious approach in deciding Woods -- the phrase "economic substance doctrine" has never appeared in a Court opinion, …
King V. Burwell And The Rise Of The Administrative State, Ronald D. Rotunda
King V. Burwell And The Rise Of The Administrative State, Ronald D. Rotunda
Ronald D. Rotunda
The Patient Protection and Affordable Care Act (ACA) is a complex law totaling nearly a thousand pages in length. The litigation now before the Supreme Court in King v. Burwell presents, on the surface, a simple issue of statutory interpretation. However, that surface has a very thin veneer. If the Court allows administrators carte blanche to change the very words of a statute, we will have come a long way towards governance by bureaucrats. Over the years, Congress has delegated many of its powers, but it has never delegated the power to raise taxes or spend tax subsidies in ways …