The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Moore Money, More Problems

Justice Barrett once again places the burden on lawyers to make their case.


A recurring theme in Justice Barrett's opinions is making attorneys work for their case. She will not connect their dots. Unless they forcefully make each step in an argument, they have not met their burden. Brackeen v. Haaland demonstrates this fastidiousness.

And, we saw it once again in Moore v. United.

Congress's power to attribute the income of closely held corporations to their shareholders is a difficult question—and unfortunately, the parties barely addressed it. Without focused briefing on the attribution question, I would not resolve it. Subpart F and the MRT may or may not be constitutional, nonarbitrary attributions of closely held foreign corporations' income to their shareholders. In this litigation, however, the Moores have conceded that subpart F is constitutional. Tr. of Oral Arg. 9. And I agree with theCourt that subpart F is not meaningfully different from the MRT in how it attributes corporate income to shareholders. Ante, at 20–21. Taxpayers generally bear the burden to show they are entitled to a refund. United States v. Janis, 428 U. S. 433, 440 (1976); see also Haaland v. Brackeen, 599 S. 255, 277–278 (2023) (burden to show unconstitutionality). Given the Moores' concession, they have not met that burden here. For that reason, I concur in the Court's judgment affirming the judgment below.

In candor, I have not carefully reviewed the record, so I do not know what "barely addressed" means here. But whatever it was, it was not enough for Professor Barrett.

BTW, the title has nothing to do with this post, but I liked the pun. I'm sure some law student will find it a useful title for a student note. In the spirit of Brian Frye, you're welcome to use it as you wish!