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ohwilleke

 Discussion between Naftali Tzvi and o…

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ohwilleke
Fri 18:16
Actually, you are partially right. It affirmed the Court of Appeals holding that it could review the issue, but found that it was inadvertantly omitted.
ohwilleke
Fri 18:14
supreme.justia.com/cases/federal/us/508/439
ohwilleke
Fri 18:14
The Court of Appeals reversed and remanded. The U.S. Supreme Court affirmed its decision to do so.
ohwilleke
Jul 25 02:14
The first official codification of federal law was the Revised Statutes of 1874, which aimed to consolidate laws in effect as of December 1, 1873. A corrected and updated version of the Revised Statutes was published in 1878. The error was made in the 1874 version and never fixed. The USC was basically just a name change and dates to 1926, but the 1874 and 1878 codifications were also codifications.
ohwilleke
Jul 25 02:14
I'm baffled at why you would think that this would matter. They are identical.
ohwilleke
Jul 25 02:14
@NaftaliTzvi The last time it happened was about 150 years ago.
ohwilleke
Jul 25 02:14
The hypothetical isn't very helpful because as a practical matter the CFR is compiled from the Federal Register, just rearranged. It is equivalent to asking if a statute in the United States Code would be valid if it was never passed as a public law. The case law cited merely makes clear that a federal regulation can incorporate other material by reference (as some public laws similarly do).
 

 Discussion on answer by littleadv: Bi…

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ohwilleke
Jul 4 00:32
@MichaelHardy (Continued) The reason for this rule is basically to prevent lower level IRS officials from setting national tax policy. Regulations, Revenue Rulings, etc. can only be made by a small elite group of very senior IRS officials in the Treasury Department's DC headquarters. Even PLR writers aren't that senior. Likewise, the job of making litigation decisions on tax code interpretations is made by the top lawyers in the tax litigation department of the DOJ in consultation with Treasury senior officials who manage the litigation as a quasi-client.
ohwilleke
Jul 4 00:32
@MichaelHardy "Might the court consider itself obligated to require the second corporation to claim the deduction because the IRS allowed that to the first corporation?" The IRS is not required to act perfectly consistently and the mere fact that it declined to fight a deduction in one case does not bind it in another. Absent an authoritative statement of policy by the IRS or a court opinion, the taxpayer can only argue that the IRS got their case wrong, not that it treated similar cases inconsistently. Even if the IRS gave another guy a PLR that doesn't bind the IRS in another identical case.
ohwilleke
Jul 4 00:32
@MichaelHardy The way the IRS works is particularly complicated and atypical of other federal government agencies, and since I practice in the tax litigation area on a regular basis, I spell that out at some length as pertinent to the question, in my supplemental answer.
 

 Discussion on answer by Mary: Is birt…

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ohwilleke
Jul 1 22:24
@o.m. SCOTUS might grant cert on the merits, but if it does, I would expect a 9-0 decision holding that the E.O. is unconstitutional (or at least a 7-2 decision to that effect), probably with the opinion written by one of the three liberal justices. I don't expect any intermediate appellate courts to uphold the E.O. either, probably with unanimous rulings and probably without an en banc review. Not sure what "pointing to precedent" would mean in this context. It might issue a summary per curiam decision without oral argument.
ohwilleke
Jul 1 22:24
@o.m. Judging for oral arguments in the recent national injunction case, a majority of SCOTUS is not more swayed by the administration's arguments than any lower court judge who has been presented with the issue (who have unanimously ruled the other way). They ruled for Trump on the national injunction issue, but there is no sign that even a single one of them is swayed on the merits.
 

 Discussion on answer by ohwilleke: Wh…

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ohwilleke
May 7 00:36
@SeanDuggan The question is about how the tax law in the U.S. works when complied with. Every country has people who violate tax laws, who violate labor laws, and for that matter, who violate laws against murdering and kidnapping people. The literature on legal compliance and corruption in the U.S. puts it roughly in the middle of developed countries. It's better than Greece or Italy or Spain, it's worse than Denmark or Finland or Germany. It's better than India, most of Latin America, or China, but worse than Singapore or Australia.
ohwilleke
May 7 00:36
@paulj Sure, there are earmarks and pet projects, but they are a smaller part of the total picture than cynics would expect. Big picture principles matter too (FWIW, I interned for the member that was the chair of the U.S. House Ways and Means Committee at the time, and was a law partner of a state legislator for a few years, so I've seen what happens behind the scenes up close and personal and come away with a less cynical view than your comment).
ohwilleke
May 7 00:36
@IllusiveBrian A distinction without a difference in this case.
ohwilleke
May 7 00:36
@dave_thompson_085 I didn't have enough allowed character (its limited to 30,000) to be more specific.
ohwilleke
May 7 00:36
@AxiomaticNexus I've cleaned up that language to address that point.
ohwilleke
May 7 00:36
@DJClayworth The elegant solution, if one wants to tax tips, would have been to treat tips as self-employment income, rather than as wages. The employer would handle taxation on the wages paid by the employer and the employee would be responsible for taxes due on tips like any other self-employed person.
ohwilleke
May 7 00:36
@DJClayworth Oh contraire! This is only half true. Tax systems are like families and most of them are unhappy ones. "All happy families are alike; each unhappy family is unhappy in its own way."
ohwilleke
May 7 00:36
@outflak I've updated the answer with a section that addresses your concern and clarifies how this happens and what is really happening.
 

 Discussion on question by bdsl: Do an…

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ohwilleke
May 6 00:42
Many jurisdictions have a criminal offense called "reckless driving" which could involve driving at extreme speeds in excess of the speed limit, but has to be judged under the facts and circumstances of the case rather than on a strict liability basis. I don't know if that would be without the scope of the question, though.
 

 Discussion on answer by Barmar: Is te…

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ohwilleke
Apr 30 21:07
There are also limits for airplane crews and IIRC for truckers, but those are both federal rules.
 

 Discussion on answer by Italian Philo…

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ohwilleke
Apr 24 19:57
"I suspect the US was more competitive education-wise 50 or 80 years ago than it is now" Almost surely not. But, at the time, the economy didn't demand nearly as much education from its work force, and most of the world had its manufacturing infrastructure destroyed by WWII, while the U.S. homeland was almost entirely spared except for Pearl Harbor, and had suffered proportionately fewer adult male casualties in WWII as well.
 

 Discussion on answer by Questor: Is a…

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ohwilleke
Apr 24 17:59
@Barmar Sure. At a deeper level, it is closely related to a "culture of honor" that prevails in much of the American South, Appalachia, and rural America outside New England.
ohwilleke
Apr 24 17:59
@Barmar Stand my ground was mostly a further expansion that followed statutory reforms related to defense of one's own residence and came quite a bit later in time.
ohwilleke
Apr 24 17:59
@Barmar These laws got started as an attempt to overturn the common law duty in some jurisdictions to retreat if that could avoid the use of deadly force, even in your home. But it has been expanded to an elevated right to use deadly force in defense of property in some jurisdictions.
ohwilleke
Apr 24 17:59
@Barmar The issue is not that they aren't a burglar, but that if you know where they live, you can recover the property by means other than deadly force.
ohwilleke
Apr 24 17:59
@Questor 9.42(3)(A) states: "the land or property cannot be protected or recovered by any other means" So prevention is not justified if it can be recovered by other means.
ohwilleke
Apr 24 17:59
As another example, usually, somebody in a mask in your house a night would be a reasonable ground to think that he isn't legally present, and often that would be a reasonable assumption. But what if you had a Halloween or Purim party, or a costume ball that night? In those circumstances, maybe not so reasonable (maybe a guest who stayed late is helping move the TV to someone's bedroom or the basement).
ohwilleke
Apr 24 17:59
If you have a gun in your hand, it is also probably not reasonable to believe that deadly force is immediately necessary before you say something like "I've got a gun and if you don't put that TV down and leave immediately, I'm going to shoot you", especially if the burglar has his hands full with the TV. Ambushing a burglar who doesn't have a gun in hand would generally not be reasonable to think is immediately necessary unless a burglar has a gun in hand or easily at hand.
ohwilleke
Apr 24 17:59
Not quite that straightforward. One must "reasonably believes the deadly force is immediately necessary". For example, if a few ten year olds break into your house and try to steal your TV, it isn't reasonable to believe that deadly force is necessary to stop them. If the burglar is unarmed and you are a healthy former Navy SEAL, it isn't reasonable to believe that deadly force is necessary. If you recognize from his voice and gait that the person stealing your TV is your next door neighbor, deadly force isn't necessary to eventually recover the TV. Still TX law often authorizes deadly force.
 

 Discussion on answer by Neil Meyer: L…

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ohwilleke
Apr 17 18:22
While this is all valid legal authority as far as it goes, the missing piece is that definition of who is a parent and who is not a parent, is not a matter of constitutional law or even federal law. See, e.g., lsd.law/define/…
 

 Discussion on answer by Joe W: Trump …

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ohwilleke
Mar 25 23:55
@JoeW He certainly shouldn't be. Whether we've already crossed the Rubicon and just don't know it yet isn't clear.
ohwilleke
Mar 25 23:55
@JoeW "there is plenty of evidence that he cannot do whatever he wants, and there are limits to his power." IMHO, the jury is still out until more of the lawsuits against him make it to SCOTUS and we see if he complies with any SCOTUS rulings against him.
ohwilleke
Mar 25 23:55
Many forms of employment require a security clearance (mostly in law firms and defense contractors and consultancies). Denying a security clearance limits the future employment opportunities of the people whose clearances are denied.
 

 Discussion on question by Peter - Rei…

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ohwilleke
Mar 18 19:40
@Peter-ReinstateMonica I saw it stated somewhere recently, but I can't find the reference. It could be that misunderstood. Or, it could be that I'm just bad at backtracking and finding things. Or, it could be that my source was wrong. I don't know which.
ohwilleke
Mar 18 19:40
Notably, Trump's January 6 pardons were signed with an autopen.
 

 Discussion on answer by nvoigt: What …

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ohwilleke
Mar 15 19:44
I would think that while this is a civil matter, that some government agency in Germany charged with enforcing labor laws could take action against Tesla for violating labor laws on a systemic basis. Is that not the case?
 

 Discussion on answer by user182601: W…

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ohwilleke
Mar 14 04:33
The gist of this answer is correct, but constitutional monarchy is a term that covers some very distinct situations. You have countries like the U.K., Canada, and Denmark where the monarchy is purely symbolic. But you also have countries like Jordan and Morocco and Monaco, where there are some democratic institutions, but the monarch still exercises real power and is not just symbolic.
 

 Discussion on question by Neil Meyer:…

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ohwilleke
Jan 26 21:19
@PeterM The legality of the act is no different if there are witnesses than if there are not. Also, you can always be your own witness. This is always sufficient evidence. A defendant's testimony doesn't have to be corroborated to prevail at trial.
ohwilleke
Jan 26 21:19
@PeterM Typically, Law.SE answers assume the facts in the question are true and possible to prove in a question like this one, even if, in reality the practical difficulties of proving a case might be considerable, since they are about what the law says and not about what is likely to really happen to a person in this situation.
 

 Discussion on answer by ohwilleke: Ca…

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ohwilleke
Jan 22 04:31
@Acccumulation The related language of the U.S. Constitution negates that reading as a valid one.
ohwilleke
Jan 22 04:31
@vsz Yes. It could do that.
ohwilleke
Jan 22 04:31
@Senex "Impeachment" in sensu stricto is just the House indictment-like activity. But, the use of the term to refer to the entire process through a U.S. Senate conviction is so common place even among political scientists and lawyers that it cannot be called truly incorrect.
ohwilleke
Jan 22 04:31
@JimBalter My point is that while the 5th Amendment naively seems irrelevant, and most legal scholars would conclude that it is irrelevant, the determination that it is irrelevant is far from obvious. There are many occasions upon which provisions of the constitution that superficially seem even more obviously irrelevant have been given effect in interpreting other provisions of the constitution.
ohwilleke
Jan 22 04:31
@JimBalter That doesn't necessarily make it a stupid question. Many provisions of the law and the U.S. Constitution don't actually mean what a naive reading of them would tend to suggest. For example, the 11th Amendment to the U.S. Constitution does not mean what it literally says.
 

 Discussion on answer by ohwilleke: Am…

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ohwilleke
Jan 15 21:38
@JanusBahsJacquet Correct.
ohwilleke
Jan 15 21:38
@PaŭloEbermann Anyone who didn't want it disclosed would probably have standing to challenge the release as a vested right. I couldn't tell if you it would prevail (especially with the current court that rather freely abandons long established precedents).
ohwilleke
Jan 15 21:38
@FraserOrr Census information is also confidential for something like 70 years.
ohwilleke
Jan 15 21:38
@FraserOrr This is incorrect. Search warrants are issued on probable cause. Subpoenas are not. A search warrant is disruptive and issued without notice. A subpoena is an order to someone to comply personally at some time in the future (usually 2-14 days), not have someone come into your home or business unannounced.