Monthly Archives: July 2018

When to Refer to the U.S. Code Versus the Underlying Statute

by Sam Wice — Wednesday, July 25, 2018@Wice_sam

In the spirit of Professor Nielson’s recent post on in-line versus footnote citations, I wanted to mention a personal pet peeve regarding references to the U.S. Code. The U.S. Code is roughly half non-positive law and half positive law. Even though there are important legal distinctions between the two types of law, attorneys often refer to titles […]

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“Expect Delays”: Judicial Watch v. Department of Homeland Security

by Bernard Bell — Tuesday, July 24, 2018

Delay has been an endemic problem for the Freedom of Information Act (“FOIA”) regime.  As a 2016 staff report of the House Committee on Government and Oversight Reform said: Agencies fail to articulate reasons for delays or explain how to navigate the process. Requesters wait months, not weeks, before receiving any response. Even a denial […]

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Nearly Four Months After His Death, Judge Reinhardt Casts the Deciding Vote in an Important Tax Exceptionalism Case: Altera v. Commissioner of Internal Revenue

by Christopher J. Walker — Tuesday, July 24, 2018@chris_j_walker

[8/7/2018 Update: In an order issued today by a Ninth Circuit three-judge panel where Judge Graber has replaced Judge Reinhardt, the newly constituted panel states that “[t]he Opinions filed July 24, 2018, are hereby withdrawn to allow time for the reconstituted panel to confer on this appeal.”] Today the Ninth Circuit issued a 2-1 decision in a […]

Brett Kavanaugh and the Case of the Brazilian Gauchos

by Michael Kagan — Tuesday, July 24, 2018@MichaelGKagan

Because he sat on the D.C. Circuit, Supreme Court nominee Brett Kavanaugh did not decide many immigration cases. There are no immigration courts in the District of Columbia. As a result, petitions for review of orders of removal — the most common type of immigration appeal in the federal courts — do not reach his […]

The Charitable Contribution Strategy: An Ineffective SALT Substitute

by Andy Grewal — Monday, July 23, 2018

In May, the IRS announced that it would issue regulations addressing state efforts to avoid some new deduction limits enacted under the 2017 tax bill. My prior blog post on the states’ strategy is here. I have also posted my full length article, The Charitable Contribution Strategy: An Ineffective SALT Substitute, on SSRN. Here’s the abstract: The Tax […]

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Administrative Law SSRN Reading List, June 2018 Edition

by Christopher J. Walker — Wednesday, July 18, 2018@chris_j_walker

This summer the SSRN adlaw working paper series has provided for ample beach reading. June was no exception. Here is the June 2018 edition of the most-downloaded recent papers (those announced in the last 60 days) from SSRN’s U.S. Administrative Law eJournal, which is edited by Bill Funk. Regulatory Police by Rory Van Loo (Columbia […]

Lucia, Kokesh, and the Supreme Court’s Not-So-Subtle Hints to the SEC, by Daniel B. Listwa and Charles Seidell

by Guest Blogger — Tuesday, July 17, 2018

When the Supreme Court held in Lucia v. SEC that the Securities and Exchange Commission had appointed its administrative law judges in an unconstitutional manner, the focus among commentators was less on the particular agency at issue and more on the repercussions for the administrative state more generally. But, while it is true that the […]

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Another View of Judge Kavanaugh and “The Artful Dodge”

by Aaron Nielson — Monday, July 16, 2018@Aaron_L_Nielson

It isn’t a compliment to say that a judge “dodged” an issue. After all, to “dodge” is to “evad[e] by sudden bodily movement” — “an artful device to evade, deceive, or trick.” And throwing the word “artful” in front (to the extent it isn’t redundant, as “dodge” already includes “artful”) doesn’t turn it into a […]

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Chevron in the States: Mississippi Update

by Aaron Saiger — Monday, July 16, 2018

Mississippi’s high court announced last month that it will “no longer … give deference to agency interpretations” of their governing statutes.  The case is King v. Mississippi Military Dept.    It’s a tough summer for Chevron in state supreme courts, when you read King in conjunction with Wisconsin’s Tetra Tech, which I discussed two weeks ago. Like […]