Monthly Archives: July 2016

Why Lenity Has No Place in the Income Tax Laws

by Andy Grewal — Tuesday, July 19, 2016

The conflict between the rule of lenity and administrative deference doctrines has drawn significant judicial attention recently (see prior coverage here ). I’ve posted on SSRN an essay that discusses some potential implications for the tax laws, and here’s the abstract: A controversy has emerged over how to interpret statutes under which the government can […]

​D.C. Circuit Review – Reviewed: “Heady Days”

by Aaron Nielson — Saturday, July 16, 2016@Aaron_L_Nielson

To be sure, I don’t really know what life was like in the 1970s; I wasn’t even born. Even so, I’m sure it was dreadful. After all, as I read my history books, all I see are ugly clothes, disco, impeachment, killer rabbits, long lines for gas, plus something about a “malaise.” Poor souls: The only […]

Assessing Airbnb’s prospects in its San Francisco litigation, by Nancy Leong and Ben Edelman

by Guest Blogger — Friday, July 15, 2016

Last week the Internet buzzed with news of Airbnb’s lawsuit against San Francisco. Dissatisfied with a new ordinance updating and enforcing 2014 regulations of short-term rentals, Airbnb filed suit against the city, arguing that the new ordinance violated both federal law and the federal constitution. The regulations reflect San Francisco’s conclusion, grounded in more than […]

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Welcome Administrative Judge Scott Maravilla, a new blogger for N&C

by Scott Maravilla — Thursday, July 14, 2016

I want to thank the editors for bringing me on to the Notice and Comment Blog. I am an Administrative Judge at the Federal Aviation Administration with a focus on government contract law and alternative dispute resolution. I am also a member of the American Law Institute, and generally possess an academic interest in the […]

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Shouldn’t I Keep My Mouth Shut?

by Nicholas Bagley — Wednesday, July 13, 2016

Some people have asked me why I’ve been so hard on the administration for flouting appropriations law over the ACA’s cost-sharing reductions. Hasn’t the administration done the right thing to try to prevent health reform from collapsing? Aren’t the Republicans being hopelessly intransigent? Shouldn’t I just shut up? I hear all that. I’m a committed […]

D.C. Circuit Review – Reviewed: The Mystery of Coburn v. Murphy

by Aaron Nielson — Saturday, July 9, 2016@Aaron_L_Nielson

Warning! This post may only be of interest to me. But there is a mystery this week in the D.C. Circuit: What happened in Coburn v. Murphy? In Coburn, the D.C. Circuit included an intriguing footnote: “Judge Henderson was drawn to replace Chief Judge Garland, who originally heard argument in this case but did not […]

E-Cigarette Regulation: A Response to Adler et al.

by Micah Berman — Tuesday, July 5, 2016

Jonathan Adler (Case Western), Roger Meiners (Texas A&M), Andrew Morriss (UT-Arlington) and Bruce Yandle (Clemson) have co-authored Baptists, Bootleggers & Electronic Cigarettes, which is forthcoming in the Yale Journal on Regulation and has already been previewed online here and elsewhere. As the title suggests, this article applies the “Baptists & Bootleggers” theory of regulation to […]

“To Allow Members of Congress to Change Hats ….”: The Legacy of Chief Judge Abner Mikva

by Aaron Nielson — Tuesday, July 5, 2016@Aaron_L_Nielson

One of the most unusual cases you will ever read is McClure v. Carter —from the District of Idaho, in 1981. The case was a constitutional challenge to a judicial appointment, brought by a sitting U.S. Senator. That’s unusual by itself. The case is more unusual still, however, because the suit was brought under a […]

The D.C. Circuit Boots Another ACA Lawsuit

by Nicholas Bagley — Monday, July 4, 2016

Last Friday, the D.C. Circuit rejected West Virginia’s challenge to the so-called “like it, keep it” fix, which told the states that they could temporarily decline to enforce the ACA’s new insurance rules against their insurers. (Background here.) I’m sympathetic to West Virginia’s underlying legal claim. It was unlawful, in my judgment, for the Obama […]

The Predictable but Disappointing Outcome of Universal Health Services v. United States ex. rel. Escobar

by Sam Halabi — Sunday, July 3, 2016

On June 16, 2016, Justice Clarence Thomas wrote for a unanimous Supreme Court that so-called “implied certification” theories supporting False Claims Act suits were permissible under the statute but ultimately sided with the government contractor because “if the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that […]