Amici file this brief to provide the Ninth Circuit with relevant background information on the ba... more Amici file this brief to provide the Ninth Circuit with relevant background information on the basics of transfer pricing and cost-sharing agreements, and to advance four key points. First, the 2003 cost-sharing regulation at issue in this case is substantively reasonable under the commensurate-with-income standard. Although we agree with the government that this standard can be harmonized with the standard that generally governs Treasury’s rulemaking authority under section 482 (known as the arm’s-length standard), the focus of our brief is the commensurate-with-income authority. Properly understood, that authority provides a sufficient independent basis for the regulation. Indeed, the legislative history practically mandates that stock-based compensation be accounted for in cost-sharing agreements.Second, by requiring that Treasury rely exclusively on its commensurate-with-income authority in order to avail itself of that authority, the Tax Court misunderstood a basic principle of administrative law. To be sure, a court “must judge the propriety of [an agency’s action] solely by the grounds invoked by the agency.” S.E.C. v. Chenery Corp., 332 U.S. 194, 196 (1947). But a court must “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). And here, the cost-sharing regulation may be reasonably understood as an exercise of Treasury’s commensurate-with-income authority, and both the notice of proposed rulemaking and the preamble to the final cost-sharing regulation cited this authority.Third, even if this Court finds that Treasury’s explanation of the cost-sharing regulation is inadequate, the taxpayer bears the burden of establishing that any error affected the procedure used or the substance of the decision reached. But it cannot carry this burden, because Treasury considered the comments submitted and responded accordingly. And Treasury reached a substantively reasonable conclusion that addresses the concerns that led Congress to create the commensurate-with-income standard in the first place. Therefore, at a minimum, this Court should remand the regulation to Treasury without vacating it, so that Treasury has an opportunity to clarify its explanation.Finally, invalidating the regulation would have significant policy consequences, resulting in billions of dollars of lost tax revenue due to this regulation alone. It would upset the past decade of cost-sharing agreements and adversely impact tax administration in a manner that reaches far beyond the regulation at issue here, at significant cost to the public fisc.
The first of its kind, this book offers a global overview of the first-year curriculum in a singl... more The first of its kind, this book offers a global overview of the first-year curriculum in a single volume. In short, available lessons, the book covers all the major concepts taught in each of the courses most commonly offered in the first year of law school: criminal law, torts, civil procedure, constitutional law, property, and contracts. By reading through all the lessons for an individual course, first-year students will get a complete overview of that course early in the semester. As the semester goes forward, students can accelerate their learning and comprehension by reviewing individual lessons when preparing for class. As the semester comes to a close, the lessons in this book provide an invaluable framework for outlining and exam preparation. This book is also an ideal introduction for undergraduate students. For formal Pre-Law or Introduction to American Law courses, this book will provide students with a comprehensive overview broken into concise, digestible chunks that are ideal for further development in lecture or discussion sections. Outside the classroom, the book offers a stimulating introduction to fundamental legal concepts that will engage those who might be thinking about going to law school and citizens who simply want to know more about the law as a central feature of public life.
Contemporary legal thinking is in the thrall of a cult of flexibility. We obsess about avoiding d... more Contemporary legal thinking is in the thrall of a cult of flexibility. We obsess about avoiding decisions without all possible relevant information while ignoring the costs of postponing decisions until that information becomes available. We valorize procrastination and condemn investments of decisional resources in early decisions. Both public and private law should be understood as a productive activity con¬verting information, norms, and decisional and enforcement capacity into out¬puts of social value. Optimal timing depends on changes in these inputs’ scarcity and in the value of the decision they produce. Our legal culture tends to overes¬ti¬mate the value of information that may become available in the future while discounting declines over time in decisional resources and the utility of decisions. Even where postponing some decisions is necessary, a sophisticated appreciation of discretion’s components often exposes aspects of decisions that can and should be made earlier. D...
The Patient Protection and Affordable Care Act (ACA) transformed U.S. public law in crucial ways ... more The Patient Protection and Affordable Care Act (ACA) transformed U.S. public law in crucial ways extending far beyond health care. As important as were the doctrinal shifts wrought by National Federation of Independent Business v. Sebelius, the ACA's structural changes to public law likely will prove far more important should they become entrenched. The struggle over the ACA has triggered the kind of "constitutional moment" that has largely replaced Article V's formal amendment procedure since the Prohibition fiasco. The Court participates in this process, but the definitive and enduring character of these constitutional moments' outcomes springs from broad popular engagement. Despite the Court's ruling and the outcome of the 2012 elections, the battle over whether to implement or shelve the ACA will continue unabated, both federally and in the states, until We the People render a clear decision. Whether the ACA survives or fails will determine the basic pr...
Contemporary legal thinking is in the thrall of a cult of flexibility. We obsess about avoiding d... more Contemporary legal thinking is in the thrall of a cult of flexibility. We obsess about avoiding decisions without all possible relevant information while ignoring the costs of postponing decisions until that information becomes available. We valorize procrastination and condemn investments of decisional resources in early decisions. Both public and private law should be understood as a productive activity converting information, norms, and decisional and enforcement capacity into outputs of social value. Optimal timing depends on changes in these inputs’ scarcity and in the value of the decision they produce. Our legal culture tends to overestimate the value of information that may become available in the future while discounting declines over time in decisional resources and the utility of decisions. Even where postponing some decisions is necessary, a sophisticated appreciation of discretion’s components often exposes aspects of decisions that can and should be made earlier. Disas...
In many rural areas, a significant proportion of working poor households are self-employed in far... more In many rural areas, a significant proportion of working poor households are self-employed in farming or other small enterprises. In rural Alaska and on some Native American reservations, subsistence hunting and fishing is crucial to many households' well-being. Even in urban areas, many low-income people seek to supplement their incomes by renting out rooms, doing odd repair work, or selling products of one kind or another. As the economy weakens, opportunities for low-income people to find traditional wage employment have become extremely scarce. This may lead even more legal services clients to turn to self-employment ventures to improve their situations.
TABLE OF CONTENTS INTRODUCTION I. THE INABILITY OF STANDARD THEORIES OF FEDERALISM TO EXPLAIN FED... more TABLE OF CONTENTS INTRODUCTION I. THE INABILITY OF STANDARD THEORIES OF FEDERALISM TO EXPLAIN FEDERAL-STATE FISCAL RELATIONSHIPS A. Theoretical Differences Between Regulatory and Fiscal Federalism 1. Dual Sovereignty Theories 2. Comparative Process Theories 3. Pluralist Theories 4. Comparative Efficiency Theories B. Practical Differences Between Regulatory and Fiscal Federalism II. FEDERAL INVOLVEMENT IN STATES' FISCAL AFFAIRS A. The Development of a Cooperative Fiscal Federalism 1. Separatism in Fiscal Federalism 2. Cost-Shifting in Areas of Joint Federal-State Concern 3. Three Cooperative Models of Fiscal Federalism (a) The Compensatory Model (b) The Superior Capacity Model (c) The Leadership Model B. Practical Problems in Cooperative Fiscal Federalism 1. The Puzzle of Substantive Mandates on States 2. Cyclical Stresses on Federal-State Spending Programs (a) Matching Programs (b) Unmatched Programs 3. Impacts of Federal Deficit Reduction Efforts C. Conflict and Cooperation in ...
Growing concern about poverty in the late 1960s produced two sweeping legal revolutions. One gave... more Growing concern about poverty in the late 1960s produced two sweeping legal revolutions. One gave welfare recipients specific legal rights against arbitrary eligibility rules and benefit terminations. The other gave low-income tenants recourse when landlords failed to repair their homes. The 1996 welfare law exposed the welfare rights revolution's frailty by ending Aid to Families with Dependent Children (AFDC) and severely cutting other key programs. Little noticed by legal scholars, the tenants' rights revolution's centerpiece, the implied warranty of habitability, also has failed, and for broadly similar reasons.
The first of its kind, this book offers a global overview of the first-year curriculum in a singl... more The first of its kind, this book offers a global overview of the first-year curriculum in a single volume. In short, available lessons, the book covers all the major concepts taught in each of the courses most commonly offered in the first year of law school: criminal law, torts, civil procedure, constitutional law, property, and contracts. By reading through all the lessons for an individual course, first-year students will get a complete overview of that course early in the semester. As the semester goes forward, students can accelerate their learning and comprehension by reviewing individual lessons when preparing for class. As the semester comes to a close, the lessons in this book provide an invaluable framework for outlining and exam preparation. This book is also an ideal introduction for undergraduate students. For formal Pre-Law or Introduction to American Law courses, this book will provide students with a comprehensive overview broken into concise, digestible chunks that ...
Amici file this brief to provide the Ninth Circuit with relevant background information on the ba... more Amici file this brief to provide the Ninth Circuit with relevant background information on the basics of transfer pricing and cost-sharing agreements, and to advance four key points. First, the 2003 cost-sharing regulation at issue in this case is substantively reasonable under the commensurate-with-income standard. Although we agree with the government that this standard can be harmonized with the standard that generally governs Treasury’s rulemaking authority under section 482 (known as the arm’s-length standard), the focus of our brief is the commensurate-with-income authority. Properly understood, that authority provides a sufficient independent basis for the regulation. Indeed, the legislative history practically mandates that stock-based compensation be accounted for in cost-sharing agreements.Second, by requiring that Treasury rely exclusively on its commensurate-with-income authority in order to avail itself of that authority, the Tax Court misunderstood a basic principle of administrative law. To be sure, a court “must judge the propriety of [an agency’s action] solely by the grounds invoked by the agency.” S.E.C. v. Chenery Corp., 332 U.S. 194, 196 (1947). But a court must “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). And here, the cost-sharing regulation may be reasonably understood as an exercise of Treasury’s commensurate-with-income authority, and both the notice of proposed rulemaking and the preamble to the final cost-sharing regulation cited this authority.Third, even if this Court finds that Treasury’s explanation of the cost-sharing regulation is inadequate, the taxpayer bears the burden of establishing that any error affected the procedure used or the substance of the decision reached. But it cannot carry this burden, because Treasury considered the comments submitted and responded accordingly. And Treasury reached a substantively reasonable conclusion that addresses the concerns that led Congress to create the commensurate-with-income standard in the first place. Therefore, at a minimum, this Court should remand the regulation to Treasury without vacating it, so that Treasury has an opportunity to clarify its explanation.Finally, invalidating the regulation would have significant policy consequences, resulting in billions of dollars of lost tax revenue due to this regulation alone. It would upset the past decade of cost-sharing agreements and adversely impact tax administration in a manner that reaches far beyond the regulation at issue here, at significant cost to the public fisc.
The first of its kind, this book offers a global overview of the first-year curriculum in a singl... more The first of its kind, this book offers a global overview of the first-year curriculum in a single volume. In short, available lessons, the book covers all the major concepts taught in each of the courses most commonly offered in the first year of law school: criminal law, torts, civil procedure, constitutional law, property, and contracts. By reading through all the lessons for an individual course, first-year students will get a complete overview of that course early in the semester. As the semester goes forward, students can accelerate their learning and comprehension by reviewing individual lessons when preparing for class. As the semester comes to a close, the lessons in this book provide an invaluable framework for outlining and exam preparation. This book is also an ideal introduction for undergraduate students. For formal Pre-Law or Introduction to American Law courses, this book will provide students with a comprehensive overview broken into concise, digestible chunks that are ideal for further development in lecture or discussion sections. Outside the classroom, the book offers a stimulating introduction to fundamental legal concepts that will engage those who might be thinking about going to law school and citizens who simply want to know more about the law as a central feature of public life.
Contemporary legal thinking is in the thrall of a cult of flexibility. We obsess about avoiding d... more Contemporary legal thinking is in the thrall of a cult of flexibility. We obsess about avoiding decisions without all possible relevant information while ignoring the costs of postponing decisions until that information becomes available. We valorize procrastination and condemn investments of decisional resources in early decisions. Both public and private law should be understood as a productive activity con¬verting information, norms, and decisional and enforcement capacity into out¬puts of social value. Optimal timing depends on changes in these inputs’ scarcity and in the value of the decision they produce. Our legal culture tends to overes¬ti¬mate the value of information that may become available in the future while discounting declines over time in decisional resources and the utility of decisions. Even where postponing some decisions is necessary, a sophisticated appreciation of discretion’s components often exposes aspects of decisions that can and should be made earlier. D...
The Patient Protection and Affordable Care Act (ACA) transformed U.S. public law in crucial ways ... more The Patient Protection and Affordable Care Act (ACA) transformed U.S. public law in crucial ways extending far beyond health care. As important as were the doctrinal shifts wrought by National Federation of Independent Business v. Sebelius, the ACA's structural changes to public law likely will prove far more important should they become entrenched. The struggle over the ACA has triggered the kind of "constitutional moment" that has largely replaced Article V's formal amendment procedure since the Prohibition fiasco. The Court participates in this process, but the definitive and enduring character of these constitutional moments' outcomes springs from broad popular engagement. Despite the Court's ruling and the outcome of the 2012 elections, the battle over whether to implement or shelve the ACA will continue unabated, both federally and in the states, until We the People render a clear decision. Whether the ACA survives or fails will determine the basic pr...
Contemporary legal thinking is in the thrall of a cult of flexibility. We obsess about avoiding d... more Contemporary legal thinking is in the thrall of a cult of flexibility. We obsess about avoiding decisions without all possible relevant information while ignoring the costs of postponing decisions until that information becomes available. We valorize procrastination and condemn investments of decisional resources in early decisions. Both public and private law should be understood as a productive activity converting information, norms, and decisional and enforcement capacity into outputs of social value. Optimal timing depends on changes in these inputs’ scarcity and in the value of the decision they produce. Our legal culture tends to overestimate the value of information that may become available in the future while discounting declines over time in decisional resources and the utility of decisions. Even where postponing some decisions is necessary, a sophisticated appreciation of discretion’s components often exposes aspects of decisions that can and should be made earlier. Disas...
In many rural areas, a significant proportion of working poor households are self-employed in far... more In many rural areas, a significant proportion of working poor households are self-employed in farming or other small enterprises. In rural Alaska and on some Native American reservations, subsistence hunting and fishing is crucial to many households' well-being. Even in urban areas, many low-income people seek to supplement their incomes by renting out rooms, doing odd repair work, or selling products of one kind or another. As the economy weakens, opportunities for low-income people to find traditional wage employment have become extremely scarce. This may lead even more legal services clients to turn to self-employment ventures to improve their situations.
TABLE OF CONTENTS INTRODUCTION I. THE INABILITY OF STANDARD THEORIES OF FEDERALISM TO EXPLAIN FED... more TABLE OF CONTENTS INTRODUCTION I. THE INABILITY OF STANDARD THEORIES OF FEDERALISM TO EXPLAIN FEDERAL-STATE FISCAL RELATIONSHIPS A. Theoretical Differences Between Regulatory and Fiscal Federalism 1. Dual Sovereignty Theories 2. Comparative Process Theories 3. Pluralist Theories 4. Comparative Efficiency Theories B. Practical Differences Between Regulatory and Fiscal Federalism II. FEDERAL INVOLVEMENT IN STATES' FISCAL AFFAIRS A. The Development of a Cooperative Fiscal Federalism 1. Separatism in Fiscal Federalism 2. Cost-Shifting in Areas of Joint Federal-State Concern 3. Three Cooperative Models of Fiscal Federalism (a) The Compensatory Model (b) The Superior Capacity Model (c) The Leadership Model B. Practical Problems in Cooperative Fiscal Federalism 1. The Puzzle of Substantive Mandates on States 2. Cyclical Stresses on Federal-State Spending Programs (a) Matching Programs (b) Unmatched Programs 3. Impacts of Federal Deficit Reduction Efforts C. Conflict and Cooperation in ...
Growing concern about poverty in the late 1960s produced two sweeping legal revolutions. One gave... more Growing concern about poverty in the late 1960s produced two sweeping legal revolutions. One gave welfare recipients specific legal rights against arbitrary eligibility rules and benefit terminations. The other gave low-income tenants recourse when landlords failed to repair their homes. The 1996 welfare law exposed the welfare rights revolution's frailty by ending Aid to Families with Dependent Children (AFDC) and severely cutting other key programs. Little noticed by legal scholars, the tenants' rights revolution's centerpiece, the implied warranty of habitability, also has failed, and for broadly similar reasons.
The first of its kind, this book offers a global overview of the first-year curriculum in a singl... more The first of its kind, this book offers a global overview of the first-year curriculum in a single volume. In short, available lessons, the book covers all the major concepts taught in each of the courses most commonly offered in the first year of law school: criminal law, torts, civil procedure, constitutional law, property, and contracts. By reading through all the lessons for an individual course, first-year students will get a complete overview of that course early in the semester. As the semester goes forward, students can accelerate their learning and comprehension by reviewing individual lessons when preparing for class. As the semester comes to a close, the lessons in this book provide an invaluable framework for outlining and exam preparation. This book is also an ideal introduction for undergraduate students. For formal Pre-Law or Introduction to American Law courses, this book will provide students with a comprehensive overview broken into concise, digestible chunks that ...
Uploads
Papers by David Super