May 28, 2009
Chevron Deference Due "No Smile" Virginia DMV Rule?
Virginia became, I think, the fourth state to adopt a "no smiling for your driver's license photo" state, doing so by DMV reg, according to this story.
May 26, 2009
The Supremes' Review of Sotomayor's Statutory Construction Cases
I ram a simple Westlaw search and found 3 cases where the Court reviewed a decision of Judge Sotomayor that involved statutory construction.
Under the Internal Revenue Code, individuals may subtract from their taxable income certain itemized deductions, but only to the extent the deductions exceed 2% of adjusted gross income. A trust may also claim those deductions, also subject to the 2% floor, except that costs incurred in the administration of the trust, which would not have been incurred if the trust property were not held by a trust, may be deducted without regard to the floor. In the case of individuals, investment advisory fees are subject to the 2% floor; the question presented is whether such fees are also subject to the floor when incurred by a trust. We hold that they are and therefore affirm the judgment below, albeit for different reasons than those given by the Court of Appeals.
Title I of the Securities Litigation Uniform Standards Act of 1998 (SLUSA) provides that “[n]o covered class action” based on state law and alleging “a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security” “may be maintained in any State or Federal court by any private party.” § 101(b), 112 Stat. 3230 (codified at 15 U.S.C. § 78bb(f)(1)(A)). In this case the Second Circuit held that SLUSA only pre-empts state-law class-action claims brought by plaintiffs who have a private remedy under federal law. 395 F.3d 25 (2005). A few months later, the Seventh Circuit ruled to the contrary, holding that the statute also pre-empts state-law class-action claims for which federal law provides no private remedy. Kircher v. Putnam Funds Trust, 403 F.3d 478 (C.A.7 2005). The background, the text, and the purpose of SLUSA's pre-emption provision all support the broader interpretation adopted by the Seventh Circuit.
Empathy, Strict Construction, and Sotomayor
I don't normally make this a focus on SCOTUS, for the obvious reason that about 9,000 other blogs focus on what it does, but I do feel the need to say a word about the nomination and this hubub over "empathy" and courts making "policy."
More on "the law of interpretation of tax laws"
They're blogging seriously about this here... my own view has become that statutory interpretation has grown way too complex already, and the last thing we need, apart from taking the context of tax laws into account, is a separate body of law about interpreting statutes. My goodness.
Interesting Split on Plain Meaning under BAPCA
Section 707(b)(2)(A)(iii)(I) (no, I am not making that up) of the bankruptcy statutes, which creates a "means test" for when a case can be dismissed for abuse of the bankruptcy system has created an interesting split, addressed in In re Stewart. __ F. Supp.2d __ (Bankr. D. Or. March 16, 2009). That court wrote in part: "Although most courts on either side of the split agree that interpretation of § 707(b)(2)(A)(iii)(I) is governed by the plain language of the statute, their interpretations differ."
Although the case presents, I am sure, an interesting question for bankruptcy lawyers, it also raises to me the interesting question of ambiguity: how can any court, once there is a split in meaning, say that plain meaning controls, and that the statute is unambiguous?