Child Care, Work, and the Federal Income Tax

This article explores the federal income tax treatment of employment-related child care expenses. It takes both a theoretical and historical approach, examining the various ways in which the Code has dealt with child care in relation to conventional tax notions and values at play in the community at large. Part II outlines the history of the Code\u27s various childcare provisions. It is a critical analysis whose purpose is to decide whether any of the provisions, which have existed, can be explained by a particular tax theory. Part III asks whether employment-related childcare expenses can be characterized as business or personal expenses. This question is asked in the hope that it can reveal what the proper tax treatment of employment-related childcare expenses should be. Would the exclusion of such costs be a refinement of the taxpayer\u27s income or just another loophole? The issue of the imputed income of home production is taken up in part IV. Should a deduction for childcare and household services be allowed so as to provide tax neutrality between wage work and housework? Part V takes a second run through the history developed in part II. This time, however, the emphasis is sociological. I explore whether our reasons for preferring one child care provision over another, or over none at all, are more a product of underlying values regarding work and family than adherence to tax theory. Finally, in part VI, the author discusses what type of childcare provision he thinks the Code should have in light of what he has presented in the paper

Why Preemption Proponents are Wrong

The basic idea of federal preemption is easily stated: It is a constitutionally mandated principle that demands that federal law trumps state law when the two conflict or in the rare instances when a federal law is so comprehensive that there’s no role left for state law to fill. But in practice, courts have often had difficulty applying the principle. For plaintiff lawyers, preemption is an ever-present worry. When your client has been injured by a defective car, truck, medical device, boat, tobacco product, pesticide, or mislabeled drug, or has been victimized by a bank or other lending institution, the defendant will probably assert that federal law preempts your client’s state law damages claim. You can expect this argument no matter how weak the federal regulatory scheme or how attenuated the connection between that scheme and the harms your client suffered or the state law duties under which your client seeks a remedy. But defendants’ and tort “reformers’” pro-preemption arguments do not reflect current preemption doctrine as established by the courts. A common—and false—argument for preemption, for example, is that state tort law necessarily interferes with federal regulatory objectives. Moreover, preemption of state tort law is a bad idea. Immunizing the makers of products that cause injury simply because, for instance, these products have been approved for marketing by a federal agency harms both the injured people and society generally

Preventing the Subversion of \u3ci\u3eDevlin v. Scardelletti\u3c/i\u3e

In 2002, the U.S. Supreme Court ruled in Devlin v. Scardelletti that objecting class members could appeal a federal district court’s approval of a class settlement without first intervening in the litigation. Public interest lawyer Brian Wolfman says the ruling was a victory for both objectors and the integrity of class action procedure: Objectors, he argues, help keep fairness hearings fair. But a number of courts are now ruling that Devlin only applies to non-opt-out class actions, rather than the much more numerous ones that give class members opt-out rights. In this article, Wolfman details the exact wording of the Supreme Court decision and asserts that the high court clearly did not limit the application of Devlin

\u3ci\u3ePLIVA v. Mensing\u3c/i\u3e and Its Implications

The U.S. Supreme Court ruling in PLIVA Inc. v. Mensing will immunize generic drug manufacturers facing failure-to-warn claims from state-law liability, and may also have implications for preemption jurisprudence more generally, says attorney Brian Wolfman and co-author Dena Feldman in this BNA Insight. The authors analyze the ruling, and offer their views on the questions that PLIVA raises about the ongoing vitality of the presumption against preemption, the standard for determining ‘‘impossibility’’ preemption, and the propriety of deference to an agency’s views on preemption

\u3ci\u3eMutual Pharmaceutical Co. v. Bartlett\u3c/i\u3e and Its Implications

The authors state that the U.S. Supreme Court’s preemption ruling in Mutual Pharmaceutical Co. v. Bartlett, which generally shields generic drug manufacturers from state-law damages liability for design-defect claims, may also have broader implications for preemption jurisprudence. In this article they describe the Supreme Court’s decision in Mutual and evaluate how it may affect future products-liability litigation. Part I provides an overview of the case’s factual background and of federal generic drug regulation, while Part II discusses the Court’s majority opinion and the dissents. Part III analyzes the implications of the decision, offering ideas on how plaintiffs injured by defective or mislabeled generic prescription drugs may seek compensation after Mutual and how federal regulators and Congress may respond. Part III also briefly assesses Mutual’s potential impact on federal preemption doctrine

Brief of Brian Wolfman, Aderson B. Francois, and Eric Schnapper as Amici Curiae in Support of Petitioner in Peterson v. Linear Controls Incorporated, No. 18-1401 (U.S. Supreme Court June 6, 2019)

In Title VII disparate-treatment, employment-discrimination cases, the term “adverse employment action” originally developed as judicial shorthand for the statute’s text, which broadly prohibits any discriminatory conduct by an employer against an employee based on the employee\u27s race, color, religion, sex, or national origin. See 42 U.S.C. 2000e-2(a)(1). But what started simply as shorthand has taken on a life of its own and now improperly limits the statute’s reach. The Fifth Circuit’s version of the adverse-employment-action rule stands out as especially improper: Only an “ultimate employment decision”—a refusal to hire, a firing, a demotion, or the like—constitutes impermissible discrimination.In this amicus brief, we urge the Supreme Court to grant review and overturn the Fifth Circuit\u27s standard. We argue, first, that the Fifth Circuit\u27s ultimate-employment-decision standard is inconsistent with Title VII’s text and the Supreme Court’s Title VII decisions. Next, we show that the Fifth Circuit’s rule excludes many discriminatory employment practices that are unlawful in its sister circuits. The stories of discrimination victims from these other jurisdictions demonstrate that the Fifth Circuit’s approach is wrong. These individuals suffered discrimination that Title VII prohibits, but the Fifth Circuit’s standard would enable their employers to discriminate without consequence. Finally, we propose a standard consistent with Title VII’s text and Supreme Court precedent: As long as the employer’s intentional, discriminatory conduct imposes meaningful harm on the employee, it is prohibited by, and may be remedied under, Title VII

What the Shutts Opt-Out Right is and What it Ought to Be

This article discusses the ramifications of the U.S. Supreme Court\u27s decision in Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985), regarding the right of an absent class member to opt out of a class action. The article addresses both the current prevailing understanding of Shutts, which is based on the personal jurisdiction strain of due process jurisprudence, and what the authors believe is a more useful understanding, based on the property rights strain of due process jurisprudence. As an addendum to the article, the authors propose a new civil procedure rule governing class actions that would implement their ideas about opt-out rights and class action governance more generally

Some Thoughts on Reply Briefs

This essay provides suggestions for writing reply briefs. It begins with a quick review of the well-understood ways in which an appellate advocate should acquire and review the information needed to write a comprehensive and powerful reply brief.The essay then turns to the more difficult challenges of crafting the brief, making three key points:First, don\u27t just go tit-for-tat in responding to one point after another advanced by the appellee. That can be boring and ponderous and often requires you to argue the case on your opponent\u27s terms. Rather, re-frame the case on your client\u27s terms, taking the case back from the appellee and weaving your responses to the appellee\u27s argument into your basic thesis statement(s).Second, don\u27t respond to everything your opponent says that you view as incorrect, misleading, or annoying; rather, be the adult in the room, and respond only to things that matter. Judges and law clerks will appreciate this measured, mature, and economical approach.Third, bear in mind the relationship between the opening brief and the reply brief. When writing your opening brief, anticipate the appellee\u27s arguments and think hard about whether your opening brief should serve as a reply on some key points. If the opening brief does this fairly, you can gain the court\u27s trust as a straight shooter, while preempting the impact of the appellee\u27s arguments by outing them in the first place. Then, when it\u27s time to write the reply brief, you can call back your earlier brief and reply economically on the points you\u27ve already discussed