Law Archives - Page 15 of 24

King v. Burwell; Can’t Quite Let It Go!

February 20, 2015

The Supreme Court will hear from counsel for the parties in King v. Burwell on March 4, a week from Wednesday. I have some thoughts. I want to start by sharing the issue, as the Court formulated it:

Whether the Internal Revenue Service may permissibly promulgate regulations to extend tax-credit subsidies to coverage purchased through exchanges established by the federal government under Section 1321 of the Patient Protection and Affordable Care Act.

Note what issues are not before the Court: Obamacare is bad; Obamacare costs me money; But freedom; etc. If process matters, the narrow question before the Court involves the right of the IRS, as the agency charged with administering the subsidies, to interpret the statute as it

King v. Burwell, Obamacare, Patient Protection and Affordable Care Act

Law

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Standing to Sue/The Supremacy Clause

February 16, 2015

Mark Rubin

In all lawsuits, plaintiffs must have standing to sue. In federal court there must be: (a) a controversy which falls within the ambit of cases the federal courts can hear; and (b) a plaintiff suffering from or having the potential to suffer a real and direct injury. Without these two conditions you can’t sue.

Further, standing is necessary when a suit gets filed and during the entire process. If the risk of a direct injury when you sued goes away—because, for example, your status changes or a law you are complaining about gets repealed—your suit cannot go forward.

So standing has become an issue in King v. Burwell, the case challenging Obamacare subsidies. Here’s Cristian Farias at New

Alabama, judges, King v. Burwell, Roy Moore, same sex marriage, standing

Law

Rehnquist and O’Connor – Arizona Justices

February 9, 2015

Mark Rubin

Last Friday I attended part of The Rehnquist Court: Ten Years Later, presented jointly by the William H. Rehnquist Center on the Constitutional Structures of Government and the James E. Rogers College of Law at the University of Arizona. I spent a very interesting morning learning about federalism—the relationship between state governments and the federal government—and the role of the Chief Justice of the United States. (No, nothing left out there; the office-holder—all 17, to date, men—is the Chief Justice of the country, not the Court.) I missed afternoon sessions on criminal justice and the First Amendment.

I mention my day because I don’t know how many people appreciate the value associated with having two justices—one the Chief

Chief Justice William Rehnquist, James E. Roger College of Law, Justice Sandra Day O'Connor, The Rehnquist Center, University of Arizona

Law

Attorneys Don’t Live Forever

February 2, 2015

Mark Rubin

Living in Arizona provides plenty to cry about. Bright spots are here and there, though, and I am not talking about the sun.

I have been involved for many years with the State Bar of Arizona ethics and discipline system, first as a volunteer judge, then as a drafter of our ethics rules, and, for the past almost 20 years as an attorney representing other attorneys. I also speak often to attorney groups and provide expert testimony. The system with which I have been involved has been a national leader for decades, and that is a big bright spot!

Recently, the Bar formed a Succession Planning Task Force. Why? Just look at the age distribution among Arizona attorneys, as of

attorneys, State Bar of Arizona, Succession Planning Task Force, Successor Counsel, trusts, wills

Law

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Obamacare News

January 29, 2015

Mark Rubin

Rich! Just really rich! That’s my reaction to House GOP Demands To Know What Obama Will Do If SCOTUS Guts Obamacare, posted at TalkingPointsMemo on January 28 and written by Sahil Kapur.

The issue is King v. Burwell, No. 14-114, the Supreme Court case to be argued on March 4. The plaintiffs claim subsidies cannot be provided to insureds in states without their own exchanges. Most of these states—which rely on the federal exchange—are red states, controlled by Republican governors and legislatures. (For more on the issues, read King v. Burwell: The Affordable Care Act and the Supreme Court Meet Again from MRW, posted in November 2014.)

Mr. Kapur focuses on a January 28 letter from five House

Obamacare, Patient Protection and Affordable Care Act, President Obama, Sahil Kapur

Law, The Rest of Everything

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Disparate Impact, and Unhappy People

January 26, 2015

Mark Rubin

Disparate treatment v. disparate impact is today’s subject. The concepts arise in discrimination laws passed mostly in the 1960s. The Society for Human Resource Management (SHRM) offers a detailed explanation here; in simple terms, disparate treatment involves intentional action directed at someone on account of their status—race, color, religion, gender, etc. Contrariwise, disparate impact results from seemingly neutral activities which adversely affect people on account of their status.

Increasingly, disparate treatment claims are being undermined in courts. On January 21 the U.S. Supreme Court heard oral argument in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., No. 13-1371. Amy Howe from SCOTUSblog provides an excellent review of the case, within the context of

disparate impact

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Taxation at Death

January 22, 2015

Mark Rubin

Here’s plain talk about taxation at death, with a few words about inequality. Why? Because President Obama, in his State of the Union Address, has suggested changes to the tax code. Matt O’Brien for the Washington Post wrote President Obama Finally Has His Piketty Moment on January 17, before the speech was given. The article summarizes the Administration proposals very well.

Today I’m focused most on the stepped-up basis at death. Easy, really! Basis is the adjusted cost of property, and is a tax concept. Stepped-up basis at death means your estate’s basis equals fair market value at death, not your adjusted cost.

So, assume you bought a piece of vacant land in 2000 for $100,000. Basis

basis, capital gains, Estate tax, stepped-up basis

Law

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DeBoer v. Snyder: An Update

January 19, 2015

Mark Rubin

On Friday, January 16, the U.S. Supreme Court granted certiorari to several same-sex couples, all of them plaintiffs in DeBoer v. Snyder, et al., No. 14-571. The plaintiffs have asked the Court to overrule the opinion issued by the 6th Circuit on November 6, 2014. (MRW covered that issue in Same Sex Marriage in Michigan, Ohio, Kentucky, and Tennessee: An Analysis of DeBoer v. Snyder.)

Certiorari was not unexpected, as the 4th, 7th, 9th, and 10th circuits have all ruled in favor of same sex marriage. Nothing requires the Court to resolve a split among the circuit courts, but it happens routinely when the split involves an issue that reaches many people.

In its order granting certiorari

DeBoer v. Snyder, Rick Hasen, U.S. Supreme Court

Law

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Using an Attorney Effectively

January 12, 2015

Mark Rubin

My 57 years are showing, for now I have to scroll through posts to make sure I’m not repeating myself too badly. Alas, I find no post about using an attorney effectively.

Attorneys can be sliced and diced in many ways. Most of us are specialists of one sort or another, using the notion of specialization in a very elastic way. (Arizona ethics rules do not permit an attorney to claim he or she specializes, absent being a Certified Specialist in one of the State Bar’s eight specialization categories. So, think, “focus” or “practice area,” for no one wants a bar problem.)

My reach is broad, touching on estate planning and probate, real estate, business, and representing attorneys with bar

Law

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Litigation, Made (Pretty) Simple!

January 5, 2015

Mark Rubin

Today’s lesson involves the litigation process. Here’s how it works. Assume Joe loans his friend Bob $50,000. Bob is broke, which is why he’s borrowing the money. Bob is still broke when the loan comes due, the $50,000 is gone, and Joe and Bob are now former friends.

Joe hires an attorney and sues Bob. Paperwork is prepared and filed, along with a filing fee for the court. A process server shows up at Bob’s house, says “are you Bob,” and hands him the papers. Bob has been served, and throwing the papers on the ground and spitting/stepping on them doesn’t change that fact. (This happened, really! The guy who owed the money was served at the airport, my process

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