Daniel Hemel Analyzes the Arguments in Rodriguez v. Federal Deposit Insurance Co.

Argument analysis: Going the way of the phlogiston

Rodriguez v. Federal Deposit Insurance Co. is no one’s idea of a blockbuster case. But yesterday’s oral argument in the narrow tax-refund dispute proved to be an unusually rollicking affair, with eight bursts of laughter, an out-of-breath chief justice and the second recorded discussion of phlogistons in the Supreme Court’s annals.

A “phlogiston,” for those unfamiliar with the principles of alchemy, is a fire-like element liberated during combustion. By the end of the 18th century, the phlogiston theory had been thoroughly debunked, and even earlier advocates of the theory came to concede that phlogistons were a fantasy. By the end of yesterday’s argument, the “Bob Richards rule” that the justices had granted certiorari to consider looked like it would suffer a similar fate. Indeed, Justice Stephen Breyer, who raised the subject of phlogistons, expressed doubt that any court had ever applied Bob Richards in the first place. “Now how do we know,” Breyer asked the FDIC’s attorney, that the Bob Richards rule “isn’t like phlogiston? How do we know it really exists?”

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