The Need for an Established Senate Rule on Election-Year and Lame Duck Session Supreme Court Nominations

In 2016, the Republican-held Senate refused to hold a hearing on President Barack Obama’s nominee, Merrick Garland, sparking outrage among the Democratic Party. Then-Senate Majority Leader Mitch McConnell justified his party’s actions based on what became known as the “McConnell Rule.” This controversial rule holds that during years of presidential elections, when the president and the Senate majority are of different parties, the Senate is not expected to confirm the president’s Supreme Court nominees; but, when the president and Senate majority are of the same party, vacancies may be filled. When the Senate applied this rule in 2020, the stakes were even higher. Revered liberal stalwart Justice Ruth Bader Ginsburg passed away only 46 days before the 2020 presidential election. Invoking the McConnell Rule, the Republican-held Senate moved forward with the confirmation of President Trump’s nominee Amy Coney Barrett. This contentious move again infuriated Democrats, and the presidential campaign. Now that Justice Barrett has been appointed and the presidential election has passed, it is useful to look back on the history of Supreme Court nominations during presidential election years. Such a review suggests that the so-called McConnell Rule is rooted in valid historical precedent. In fact, viewed in light of American history, even a Trump lame duck nomination and confirmation would have been valid. This blog post argues that the Senate should distill this historical precedent into an explicit Rule of the Senate that will govern the chamber going forward. The rule should obligate the Senate to either (1) hold a vote to confirm the election-year or lame duck nominee, or (2) hold a vote to postpone action on the nomination. If a vote to postpone action on the nomination fails, the rule should then compel the Senate to hold a vote to confirm the nominee. Such a rule removes all doubt about the Senate’s authority to act or refuse to act on election-year and lame duck nominees, exposes unfounded threats of retaliation by minority parties, and best conforms to the Constitution.

General Anti-Avoidance Rules Revisited: Reflections on Tim Edgar's "Building a Better GAAR"

In addition to the requirement of a tax benefit or advantage, the application of most modern general anti-avoidance rules (GAARs) turns on two elements: a "subjective element," which considers the purpose for which the transaction or arrangement resulting in the tax benefit or advantage was undertaken or arranged; and an "objective element," which considers the object or purpose of the relevant provisions to determine whether the tax benefit resulting from the transaction or arrangement is consistent with this object or purpose. Although these two elements are present in most modern GAARs, the function of each element within these rules and the relationship between them are often poorly understood. Other unresolved issues concern the roles of artificiality and economic substance in the application of these rules, and the relationship, if any, between these concepts and the "subjective" and "objective" elements of the rules. A final set of issues involves the uncertainty that GAARs may engender, the ability of judges to apply these rules and principles in a coherent and consistent manner, and the compatibility of these rules and principles with the rule of law. The author addresses these issues by reflecting on Tim Edgar's article "Building a Better GAAR." The first part of the paper considers the rationale for a general anti-avoidance rule or principle, arguing that such a rule not only represents a useful policy response to the harmful consequences of tax avoidance (the consequentialist argument that Professor Edgar espoused), but also may be justified on the non-consequentialist grounds that it protects the integrity of the provisions at issue and thereby upholds the rule of law. In the second part of the paper, the author builds on this analysis to consider the design of a general anti-avoidance rule or principle, arguing that it should be codified in the form of an explicit rule, should include subjective and objective elements such as the "purpose" and "misuse or abuse" requirements in the Canadian GAAR, and should be informed by concepts of artificiality and economic substance that apply to, respectively, the subjective and objective elements of the rule.

Beyond Reward Prediction Errors: Human Striatum Updates Rule Values During Learning

Humans naturally group the world into coherent categories defined by membership rules. Rules can be learned implicitly by building stimulus-response associations using reinforcement learning or by using explicit reasoning. We tested if the striatum, in which activation reliably scales with reward prediction error, would track prediction errors in a task that required explicit rule generation. Using functional magnetic resonance imaging during a categorization task, we show that striatal responses to feedback scale with a “surprise” signal derived from a Bayesian rule-learning model and are inconsistent with RL prediction error. We also find that striatum and caudal inferior frontal sulcus (cIFS) are involved in updating the likelihood of discriminative rules. We conclude that the striatum, in cooperation with the cIFS, is involved in updating the values assigned to categorization rules when people learn using explicit reasoning.

Beyond Reward Prediction Errors: Human Striatum Updates Rule Values During Learning

ABSTRACTHumans naturally group the world into coherent categories defined by membership rules. Rules can be learned implicitly by building stimulus-response associations using reinforcement learning (RL) or by using explicit reasoning. We tested if the striatum, in which activation reliably scales with reward prediction error, would track prediction errors in a task that required explicit rule generation. Using functional magnetic resonance imaging during a categorization task, we show that striatal responses to feedback scale with a “surprise” signal derived from a Bayesian rule-learning model and are inconsistent with RL prediction error. We also find that striatum and caudal inferior frontal sulcus (cIFS) are involved in updating the likelihood of discriminative rules. We conclude that the striatum, in cooperation with the cIFS, is involved in updating the values assigned to categorization rules when people learn using explicit reasoning.

Social Cognitive Domain Coordination in Left-Behind Children: A Comparative Study of Left-Behind and Non-Left-Behind Children in Rural China

Forty-seven left-behind children (LB) and 40 non-left-behind children (NL) in rural China were interviewed to evaluate moral, conventional, and personal violations by providing judgments and justifications. The results suggested that both LBs and NLs differentiate the rules of moral, conventional and personal domains. However, there are some differences: 1. The NL considered it acceptable to commit a personal infraction when there was no rue prohibiting it, while the LB considered it wrong; 2. The younger male LBs were more willing to accept situations without moral psychological rules, compared with younger female LBs, older male LBs, and younger male NLs. Age, sex differences were also found. The one out of our expectation is that younger males considered it more acceptable to commit a personal infraction than older males did and believed it all right if there was no explicit rule on it. Meanwhile, in providing reasons to support their judgments or evaluations, the findings revealed that: 1. More often LBs referred to social conventional reasoning even when evaluating moral and personal rules and violations, especially on personal issues; 2. LBs used more justifications of punishment and fewer justifications of personal growth. The implications of the results of the study for children’s moral development and education, especially for LBs, are discussed.

Social Cognitive Domain Coordination in Left-Behind Children: A Comparative Study of Left-Behind and Non-Left-Behind Children in Rural China

Forty-seven left-behind children (LB) and 40 non-left-behind children (NL) in rural China were interviewed to evaluate moral, conventional, and personal violations by providing judgments and justifications. The results suggested that both LBs and NLs differentiate the rules of moral, conventional and personal domains. However, there are some differences: 1. The NL considered it acceptable to commit a personal infraction when there was no rue prohibiting it, while the LB considered it wrong; 2. The younger male LBs were more willing to accept situations without moral psychological rules, compared with younger female LBs, older male LBs, and younger male NLs. Age, sex differences were also found. The one out of our expectation is that younger males considered it more acceptable to commit a personal infraction than older males did and believed it all right if there was no explicit rule on it. Meanwhile, in providing reasons to support their judgments or evaluations, the findings revealed that: 1. More often LBs referred to social conventional reasoning even when evaluating moral and personal rules and violations, especially on personal issues; 2. LBs used more justifications of punishment and fewer justifications of personal growth. The implications of the results of the study for children’s moral development and education, especially for LBs, are discussed.