In the course of writing an article exploring the as yet unexplored tax angle to the question of whether APA § 706’s de novo review requirement includes or does not include deference (now Chevron deference) to agency interpretations. I was reading two separate old law review articles and comment here on the wording in the articles without addressing the issue that led me to the articles.
Experts Who Are Particularly Experts.
The first answered an important question in a footnote. When do experts really need to be experts? Louis Eisenstein, Some Iconoclastic Reflections on Tax Administration, 53 Harv. L. Rev. 477, 478 (1945).
I. PRESENT DISCONTENTS
IF we may borrow from one who wrote wisely of more important things, these are the days that try the souls of tax men. There was a time, it seems, when a tax provision was naively expected "to be without perplexities and readily solvable by the off-hand conceptions of those to whom it was addressed." Matters have not, however, exactly worked out in accordance with such expectations and it is now fashionable to resign oneself to "innumerable complexities." Taxation" can never be made simple" is the [*478] lament, even if "we can try to avoid making it needlessly complex." Tax language normally has an enclosed meaning or has legitimately acquired such by the authority of those especially skilled in its application. The expert has come into his own as a necessary evil although the courts have not entirely reconciled themselves to his indispensability.
A brief examination of our statute law discloses how sadly hopes of an earlier day have been frustrated. The remarkably ingenuous income tax of 1913, containing but fourteen subsections, has gradually grown to the Herculean proportions of almost two hundred sections. Nor do numbers relate the entire story. Sections and subsections seem to be interminable - a strain upon the eye and a puzzle to the brain. The statutes are chockfull of elusive refinements and concentrated complexities.7 Some of the provisions are perhaps not too bad if one can push through the verbal underbrush.8 Others, like the 1942 amendment following the Enright decision, are baffling both before and after study. Or a provision, such as § 23(a) (2), inserted to overcome the Higgins decision," may induce a deceptive impression of simplicity by using a few words to say a great deal. Still others dispose of their problems [*479] by directing the Commissioner to produce order out of chaos. A few, such as § 22(a), which enables the courts to scale with ease the wall supposedly standing between legislation and interpretation, fall within the "sleeper " category.
n7 Some parts of the Code, such as §§ 201-207, dealing with the taxation of insurance companies, require experts who are particularly expert. * * * *
Back with DOJ Tax in both Appellate and Trial Sections, I handled life insurance company cases and they are indeed complex, at least some of them. But once you learn the concepts of life insurance, you can then work through the tax provisions. And, following through on the quote, I guess I became some kind of expert who was particularly expert.
Interesting Turns of
Phrases
Here is the better article, both in substantive content and the author’s ability to turn a phrase. Alfred Long Scanlan, Judicial Review Under the Administrative Procedure Act - In Which Judicial Offspring Receive a Congressional Confirmation, 23 Notre Dame L. Rev. 501 (1948). here. The gravamen of the article is APA § 706 (the positive law codified section in 5 U.S.C. of original APA § 10(e)) permits deference to agency interpretations. A growing number of judges and scholars, still a minority (and mostly very conservative or libertarian in political persuasion) do not agree. The Supreme Court has taken a case, Loper Bright Enterprises v. Raimondo (SEC) (Dkt 22-451), here, where, in the October 2023 term, the Court will consider the following question:
2. Whether the Court should overrule Chevron or, at least clarify that
statutory silence concerning controversial powers expressly but narrowly
granted elsewhere in the statute does not constitute an ambiguity requiring
deference to the agency.
Farrago means a confused mixture : HODGEPODGE, per Merriam Webster’s online dictionary.
2. Another example: “Indeed, Section 10(c) reads like a product of a semantic Alice-in-Wonderland world populated by legislative draftsmen and German philosophers. What does this unintelligible hodgepodge mean?”
3. The author also cited another article using the word “Hotchpotch.” Shine, Administrative Procedure Act: Judicial Review "Hotchpotch"? 36 GEO. L. J. 16 (1947). That was a new word for me but I inferred it is related to hodgepodge. Merriam Webster defines it thusly with some etymology:
Hodgepodge is an alteration of hotchpotch, which once referred to a thick soup of barley, peas, and other vegetables, and sometimes includes meat. Hotchpotch is itself an alteration of another word, hotchpot, derived from Old French words meaning "to shake" (hochier) and "soup" (potage).
4. The author then offers this
The purpose of this article will be to demonstrate through a provision by provision analysis of Section 10, that the Act did not change the existing law of judicial review, either by increasing the availability of judicial remedy, or by widening the scope of judicial review. The Act undoubtedly * * * * will not upset the rubric of judicial review which the federal judiciary has fashioned piecemeal, and from which it has no intention of deviating, even though its homemade precepts also now have been expressed; however opaquely, in statutory flapdoodle.*
I got the sense of flapdoodle from reading the sentence, but thought it best to nail the meaning with a dictionary search. Flapdoodle means “nonsense,” per Merriam Webster.
See what fun one can have when researching the APA?
