Daniel Hemel Analyzes Justice Gorsuch's Opinion in Rodriguez v FDIC

Opinion analysis: In tax refund case, justices decide a narrow question but leave much unresolved

Some Supreme Court decisions send shock waves across and beyond the legal universe. The court’s unanimous ruling Tuesday in Rodriguez v. Federal Deposit Insurance Corp. is not one of them. The result, a remand to the U.S. Court of Appeals for the 10th Circuit with instructions to try again, is unlikely to affect many case outcomes—and possibly won’t even alter the resolution of the case at hand.

The opinion does, however, serve to illustrate at least two important trends. One is the court’s continued cabining of “federal common law,” the set of doctrines developed by federal courts that are not based on the Constitution, acts of Congress or agency rules. The other is the court’s retreat in recent years from issues central to the interpretation of the Internal Revenue Code toward cases at the federal tax system’s periphery.

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