Emory Law Journal

ELJ OnlineVolume 66

Transforming the "Thurmond Rule" in 2016

Carl Tobias | 66 Emory L.J. Online 2001 (2016)

Senators vigorously dispute the Thurmond Rule's meaning in the 2016 presidential election year. The Rule is a peculiar tradition. The party not controlling the White House systematically invokes the custom during presidential election years to halt judicial designees' consideration until November with the hope that its standard bearer prevails and, thus, can appoint jurists. This year, Senators Grassley and McConnell characterized the tenet as "flexible," while Grassley declared that nominee confirmations generally end at the summer recess. Because confusion plagues definition of the stricture, and the Rule's incessant use dramatically exacerbates the vacancy crisis, its perpetuation merits scrutiny. Chronic partisanship attends the Thurmond Rule's deployment. The chamber needs to abolish the Rule, or at least codify and confine the approach within the Senate rules until a clear majority who favors abrogation emerges.

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Statutory Junk

David Schoenbrod | 66 Emory L.J. Online 2023 (2017)

Much as "space junk"--the debris that past space missions have left in earth's orbit--can disable a current space mission, obsolete statutory commands that Congress has left on the books can keep an administrative agency from accomplishing its current mission. This statutory junk has proliferated in recent decades because Congress has shifted from giving agencies open-ended authority to commanding them in exacting detail, but often fails to revise these commands after changing circumstances have made the old commands perverse. Congress fails because this delegation allows legislators to shift blame to the agency for harms that statutes do to their constituents. The Chevron doctrine provides agencies some leeway to avoid statutory junk, but is insufficient to cope with the problem. The solution must lie in remedying the root cause of the problem--the legislators' current ability to avoid blame for the perverse consequences of statutory junk.

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The Uses and Abuses of Simplexity

A Response to Joshua D. Blank & Leigh Osofsky, Simplexity: Plain Language and the Tax Law, 66 Emory L.J. 189 (2017)

Lawrence Zelenak | 66 Emory L.J. Online 2011 (2017)

Although the importance of IRS publications in the administration of the federal income tax can hardly be overstated, before Joshua D. Blank's and Leigh Osofsky's comprehensive study of simplexity in IRS publications scholars had given those publications almost no attention. I agree with all their major conclusions--including, most significantly, that some simplexity is inevitable in carrying out the IRS's duty of explaining immensely complex tax laws to a general readership. This brief Essay is devoted to a few points on which I disagree with the analysis of Blank and Osofksy (none of which affect my agreement with their major conclusions), and to a few thoughts--inspired by reading Blank and Osofksy--on a few non-simplexity aspects of IRS publications.

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