By Daniel Gunn

Introduction 

What if responsibly paying your taxes forfeited your right to challenge the Internal Revenue Service? That is what almost happened to Jennifer Zuch, whose diligence in making estimated tax payments led to a legal nightmare.[1] Zuch has been embroiled in a dispute with the Internal Revenue Service (IRS) for over a decade.[2] The controversy originally centered on whether the IRS should have partially credited $50,000 in tax payments made by Zuch and her then-husband toward Zuch’s 2010 tax liability.[3] After the IRS informed Zuch of its intent to levy her property, Zuch petitioned the Tax Court to review the decision.[4] Throughout the review, she continued making estimated tax payments in subsequent years, often resulting in overpayments.[5] Rather than refunding these overpayments, the IRS unilaterally applied them to her 2010 tax liability, even though Zuch contended that she already paid the 2010 liability.[6] Once the overpayments reduced her alleged 2010 liability to zero, the IRS moved to dismiss the Tax Court proceeding as moot.[7] The Tax Court agreed, holding that because Zuch fully paid the disputed liability, it no longer had jurisdiction to determine whether Zuch actually owed the liability.[8]

As a result, Zuch’s right to Tax Court review over whether she owed the liability evaporated.[9] The dismissal not only eviscerated a decade’s worth of legal effort, but also risks potentially barring her from seeking a refund in a separate suit because of the statute of limitations.[10] If unchallenged, the decision could have permanently foreclosed Zuch’s ability to dispute the underlying liability and left her without any recourse.[11] Fortunately for Zuch, the United States Court of Appeals for the Third Circuit reversed the Tax Court’s decision, ruling that her case was not moot and that the Tax Court retained jurisdiction to determine whether she overpaid her 2010 liability.[12] However, the Third Circuit’s decision created a circuit split with the Fourth and D.C. Circuits, which held that the subsequent payment of the disputed liability mooted the remaining issues before the Tax Court.[13]

The United States Supreme Court granted certiorari and will soon decide whether the IRS can effectively strip the Tax Court of jurisdiction by unilaterally applying estimated tax payments to a disputed liability.[14] The Supreme Court’s ruling could have broad implications for taxpayers seeking relief through the Tax Court.[15] For this reason, tax practitioners should closely monitor this case to better understand the scope of the Tax Court’s jurisdiction and protect their clients from a similar procedural pitfall.

I. A Brief Overview of Tax Procedure

A basic understanding of tax procedure is necessary to understand the issues involved in Zuch v. Commissioner.[16] Taxpayers generally litigate against the IRS in one of three forums: United States District Courts, the United States Claims Court, and the United States Tax Court.[17] United States District Courts and the United States Claims Court are refund tribunals—meaning taxpayers must pay the disputed tax liability upfront before filing an administrative refund claim.[18] If the IRS denies the administrative claim, the taxpayer may then sue for a refund in either a United States District Court or the United States Claims Court.[19]

In contrast, the United States Tax Court offers taxpayers the ability to challenge IRS tax assessments without first paying the disputed tax.[20] The Tax Court is an Article I court, meaning it is a specialized tribunal Congress created with jurisdiction limited to specific areas of tax law.[21] Unlike Article III courts, which derive their authority from the Constitution, Congress defines the Tax Court’s jurisdiction.[22] The Tax Court can only decide cases that fall within the parameters set by statute.[23] Taxpayers seeking to resolve disputes in Tax Court have two main avenues they can follow, and Congress granted the Tax Court different jurisdiction depending on which avenue applies.[24] These avenues commence either a deficiency proceeding or a Collection Due Process (CDP) proceeding in the Tax Court.[25]

The first avenue of Tax Court jurisdiction arises when the taxpayer disputes the existence or amount of tax owed.[26] When the IRS determines that a taxpayer owes additional taxes, it issues a notice of deficiency, which outlines the amount owed and the reasons for the determination.[27] Upon receiving the notice, the taxpayer may file a petition in the Tax Court to challenge the IRS’s determination.[28] This process commences a deficiency proceeding.[29] Deficiency proceedings are the usual method by which taxpayers dispute the existence or amount of their tax liabilities in Tax Court.[30] In deficiency proceedings, the Tax Court has broad jurisdiction to determine the amount of tax owed from the years at issue and order a refund of overpayments.[31]

The second avenue of Tax Court jurisdiction arises when the taxpayer disputes the collection methods employed by the IRS.[32] If the IRS intends to levy a taxpayer’s property, it first must send the taxpayer a notice of intent to levy.[33] The taxpayer may then request a hearing before the IRS Office of Appeals, known as a CDP hearing.[34] After the IRS Office of Appeals makes its determination, the taxpayer may petition the Tax Court for review of the decision in a CDP proceeding.[35] However, the Tax Court’s jurisdiction in CDP proceedings is more limited than in deficiency proceedings: it may review only those issues properly raised in the CDP hearing.[36]

In the CDP hearing, taxpayers may properly raise any relevant issues relating to “the unpaid tax or the proposed levy.”[37] In this context, unpaid tax does not refer to the existence or amount of a tax liability but instead refers to the collection methods the IRS uses to recover the deficiency.[38] As a result, taxpayers are usually limited in CDP hearings to issues regarding the IRS’s enforcement mechanisms rather than the underlying tax assessment.[39] Under usual circumstances, once the IRS fully collects the tax deficiency, all issues before the Tax Court in a CDP proceeding become moot because the IRS is no longer attempting to collect on a debt.[40]

However, in limited circumstances, a taxpayer may never receive a notice of deficiency from the IRS.[41] Without this notice, the taxpayer has no right to initiate a deficiency proceeding before the IRS begins collection actions and issues a notice of intent to levy.[42] In this circumstance, a taxpayer would normally have no right to dispute the existence or amount of the tax liability in the Tax Court and be forced to dispute the liability in a refund tribunal after paying the alleged tax liability.[43]

Recognizing the potential unfairness of this situation, Congress created an exception: if a taxpayer did not previously have an opportunity to dispute the tax liability in a deficiency proceeding, the taxpayer may raise the issue in the CDP hearing.[44] In such cases, the Tax Court’s jurisdiction expands—allowing it not only to review the IRS’s collection methods but also to resolve disputes concerning the amount or existence of the underlying tax liability.[45] This brings us to the central issue in Zuch v. Commissioner: does the Tax Court retain its expanded jurisdiction to address tax liability disputes in CDP proceedings once the taxpayer fully pays the disputed tax and the IRS has ceased collection efforts? This question is not only crucial to the outcome of Zuch’s case but also to the broader interpretation of the Tax Court’s authority in post‑payment disputes.[46]

II. Mootness Issues in Zuch v. Commissioner

The core conflict between Zuch and the IRS concerns whether the IRS should have credited a subsequent payment toward Zuch’s outstanding tax liability.[47] Zuch never received a notice of deficiency regarding this tax liability, and she could not dispute the existence or amount of the alleged deficiency in a deficiency hearing.[48] As a result, Zuch was entitled to dispute the underlying tax liability in her CDP hearing.[49] The issues properly before the CDP hearing—and consequently subject to Tax Court review—included the appropriateness of the collection action and the existence and amount of the tax deficiency.[50]

The parties do not dispute that the Tax Court possessed jurisdiction to resolve these issues when Zuch first filed the suit because the IRS was then attempting to collect the tax liability.[51] However, the IRS argues that the suit became moot once the IRS offset the disputed tax liability with overpayments Zuch made in subsequent tax years.[52] After Zuch fully paid the liability, the IRS terminated its collection action.[53] The IRS contends that disputes regarding the underlying tax liability cannot exist independent of a collection action in a CDP proceeding.[54] If this argument is correct, no remaining issues would fall within the Tax Court’s jurisdiction, requiring dismissal of the proceeding as moot.[55]

Mootness is a constitutional principle that restricts courts to adjudicating only live cases or controversies between litigants.[56] If no dispute between the litigants is present, or the court is unable to grant any relief whatsoever to the prevailing party, the court must dismiss the action as moot.[57] Here, both parties concede that Zuch still possesses a live controversy—whether she is entitled to a refund.[58] However, the parties dispute whether the Tax Court retained jurisdiction to decide this issue within a CDP proceeding.[59] Moreover, even if the Tax Court retained independent jurisdiction over the underlying tax liability, the parties dispute whether the Tax Court could grant adequate relief.[60] The IRS contends that such action must now be brought in a refund tribunal, while Zuch claims the Tax Court retained jurisdiction and can grant a remedy to the parties.[61]

A. Tax Court Jurisdiction under CDP Proceedings

The parties disagree as to whether the Tax Court has sufficient jurisdiction to resolve the remaining controversies between the parties. This dispute involves whether CDP proceedings maintain jurisdiction over the underlying tax liability after all collection actions have ceased and whether the Tax Court can review the IRS’s decision to set off her disputed liability with subsequent overpayments.

1. Independent Jurisdiction over the Underlying Tax Liability

The IRS—supported by the Fourth and D.C. Circuits—contends that the Tax Court lost jurisdiction to review the underlying tax liability once Zuch fully paid the liability and the collection action ceased.[62] The Tax Court is a court of limited jurisdiction, and the statute strictly limits CDP proceeding jurisdiction.[63] Internal Revenue Code (I.R.C.) § 6330(c)(2) generally limits CDP hearings to tax collection controversies, not disputes over the existence or amount of the underlying liability.[64] While I.R.C. § 6330(c)(2)(B) allows taxpayers who did not have an opportunity to dispute the existence or amount of the tax liability to do so in the CDP hearing, the IRS determined that this provision nonetheless failed to preserve Zuch’s action.[65]

Relying on decisions from the Fourth and D.C. Circuits, the IRS maintains that disputes regarding the amount or existence of the tax liability may be resolved in CDP hearings only while an active collection action exists, and CDP proceedings cannot exist independently of a collection action.[66] As a CDP hearing is primarily meant to assess the appropriateness of collection actions, the IRS contends that disputes over tax liability can be addressed in a CDP proceeding only when tied to an active collection effort.[67] The IRS argues that I.R.C. § 6330(c)(2)(B) reflects this limitation through its use of the term “underlying tax liability.”[68] According to the IRS, using the word underlying presupposes the existence of a collection action, and CDP jurisdiction cannot exist without such action.[69] The McLane v. Commissioner court similarly held that the term must be read in context and cannot apply when there is no collection action to underlie.[70] Therefore, the IRS believes that I.R.C. § 6330(c)(2)(B) acts as a mere defense to a purposed levy—not an interdependent basis of jurisdiction.[71] Once all collection actions cease, the disputed defense ceases to relate to a collection action, and the Tax Court loses jurisdiction to review the validity of the defense.[72]

In contrast, Zuch argues that the Tax Court retains jurisdiction notwithstanding the cessation of the collection efforts.[73] She maintains that I.R.C. § 6330(c)(2)(B) grants the Tax Court authority to review the existence and amount of the tax liability independent of any collection action.[74] As the tax liability remains disputed by the parties, and I.R.C. § 6330(c)(2)(B) authorizes the Tax Court to resolve such disputes, Zuch asserts that an active controversy persists under Tax Court jurisdiction.[75]

Zuch contends that Congress did not intend to allow the IRS to unilaterally strip the Tax Court of jurisdiction by simply abandoning collection efforts.[76] While a collection action is necessary to initiate a CDP hearing, she argues that collection actions need not persist for the Tax Court to resolve disputes regarding the underlying tax liability.[77] Congress expressly stated that the Tax Court “shall have jurisdiction” to review determinations made by the Appeals Office.[78] Therefore, Zuch asserts that the Tax Court should be allowed to review all live controversies decided by the Appeals Office, regardless of whether the underlying levy remains.[79]

Zuch provides three main rationales for her assertion that the Tax Court retains CDP jurisdiction when the underlying collection action ceases. First, judicial efficiency supports a finding that the Tax Court can resolve these issues.[80] If the Tax Court were deprived of jurisdiction, taxpayers would be forced to file a refund suit in a refund tribunal to resolve the remaining disputes.[81] This would burden district courts, duplicate efforts and costs for both parties, and require the IRS to defend unnecessary litigation.[82] Resolving these disputes within the Tax Court, which already resolves these issues in deficiency proceedings, would streamline the process and reduce inefficiencies.[83]

Second, Zuch argues that like other federal statutes, I.R.C. § 6330 should determine jurisdictional status at the time the taxpayer initiates the action.[84] For example, in federal diversity suits, subsequent reductions in the amount recoverable do not divest a federal court of jurisdiction so long as the amount in controversy exceeded $75,000 at the time of filing.[85] Similarly, in class actions, a court’s decision to deny certification does not eliminate jurisdiction if “jurisdiction was properly invoked as of the time of filing.”[86] Applying this principle, the Tax Court should retain jurisdiction over the underlying tax liability so long as a collection action existed when the CDP proceeding commenced.[87]

Third, Zuch emphasizes the strong presumption favoring judicial review of administrative actions.[88] This presumption dictates that a statute that is “reasonably susceptible to divergent interpretation” must be read with the traditional understanding that administrative determinations are generally subject to judicial review.[89] As I.R.C. § 6330 is at least reasonably open to interpretation regarding the Tax Court’s jurisdiction to review the CDP hearing—an administrative determination—courts should construe the statute to preserve judicial review.[90]

Judge Vasquez, dissenting in Green-Thapedi v. Commissioner, a Tax Court case with similar procedural issues, emphasized that “[r]emedial legislation should be construed broadly and liberally to effectuate its purpose.”[91] I.R.C. § 6330 is remedial in nature, intended to provide taxpayers due process in collection matters.[92] As it is hard to imagine that Congress intended to bifurcate collection and refund actions in a way that increases costs and reduces efficiency, Zuch contends courts should interpret I.R.C. § 6330 to grant the Tax Court jurisdiction to resolve the remaining issues even after collection efforts have ended.[93]

2. Jurisdiction to Review the Setoff

The collection action in Zuch ceased because the IRS set off the disputed tax liability with overpayments made in subsequent years.[94] The IRS contends that this action precludes any further CDP review because it would necessarily require the Tax Court to review the propriety of the IRS’s setoff.[95] The IRS argues the Tax Court lacks jurisdiction to review setoffs, while Zuch contends the Tax Court possesses this power.

A setoff occurs when two parties are mutually indebted to each other.[96] In such cases, setoffs allow the parties to subtract the lesser debt from the larger one, so that the debtor with the greater outstanding obligation must pay only the net balance due.[97] In tax law, a setoff may occur when the taxpayer owes an unpaid liability to the IRS, while the IRS simultaneously owes the taxpayer a refund for tax overpayments.[98] I.R.C. § 6402 expressly grants the IRS the right of setoff; however, the IRS possesses the right of setoff independent of statutory authority through the common law’s general grant to creditors.[99]

Importantly, I.R.C. § 6512(b)(4) expressly deprives the Tax Court of jurisdiction to restrain or review setoffs.[100] Moreover, the Tax Court in Greene-Thapedi and the United States Court of Appeals for the Second Circuit in Belloff v. Commissioner have previously held that setoffs do not constitute a collection action because a collection action is an administrative proceeding, whereas setoffs are a common‑law right.[101] As a result, the IRS contends that the CDP proceeding’s jurisdiction granted under I.R.C. § 6330(c)(2) does not extend to reviewing setoffs.[102] Accordingly, the IRS argues that any further proceeding in Tax Court would necessarily require a review of the setoff, which Congress expressly prohibited.[103] As such, the IRS asserts the Tax Court must dismiss the case.[104]

Conversely, the Third Circuit held that the Tax Court retains jurisdiction to review setoffs in CDP proceedings, notwithstanding the statutory prohibition in I.R.C. § 6512(b)(4).[105] The Third Circuit found that I.R.C. § 6512(b)(4) limits the Tax Court’s jurisdiction only “under this subsection.”[106] As I.R.C. § 6512(b) pertains only to the Tax Court’s jurisdiction in deficiency proceedings, the Third Circuit reasoned that the statutory limitation did not apply to CDP proceedings.[107]

While Congress did not expressly grant the Tax Court the authority to review setoffs in CDP proceedings, the Third Circuit opined that Congress implicitly granted the Tax Court the power to review setoffs.[108] This implicit grant arises from the common‑law origins of the right of setoff.[109] The Third Circuit determined the IRS’s statutory right to setoff supplemented, and did not displace, the preexisting common‑law right.[110] As the purpose of a CDP proceeding is to provide taxpayers “protections in dealing with the IRS that are similar to those they would have in dealing with any other creditor” and Congress has not expressly limited the Tax Court’s authority to review setoffs in CDP proceedings—like it did in deficiency proceedings—the Third Circuit reasoned that the Tax Court may review setoffs in a CDP proceeding.[111]

The Third Circuit also found that an IRS setoff should not render a case moot, applying the well‑established mootness principle that a defendant cannot voluntarily cease a challenged practice to deprive a court of power to determine the legality of the practice.[112] It logically follows that a defendant cannot unilaterally complete a challenged practice to render a case moot, as long as the court can still grant adequate relief to the parties.[113] Ultimately, as the underlying purpose of I.R.C. § 6330 in the broader statutory framework is to ensure “collect[ion of] the correct amount of tax,” the Tax Court retains jurisdiction to resolve questions regarding the tax liability regardless of whether the IRS setoff the disputed tax liability.[114]

B. Adequate Relief

Even if the Tax Court retained jurisdiction to review the remaining issues, Zuch’s case would still be moot if the court is unable to grant adequate relief to the parties.[115] The IRS argues that the only relief the Tax Court can grant in a CDP proceeding is the rejection of a proposed levy.[116] To grant relief to Zuch once the underlying tax is paid, the IRS contends that the Tax Court would need separate jurisdiction to determine an overpayment and order a refund.[117] Without such powers, the Tax Court could not grant Zuch relief because it would be powerless to return Zuch’s money to her, and the case would be moot due to lack‑of‑relief grounds.[118] As Congress expressly granted the Tax Court overpayment and refund powers in other circumstances, the IRS argues that Congress’s silence regarding the Tax Court’s overpayment and refund jurisdiction in CDP proceedings indicates that Congress did not intend to grant the Tax Court such jurisdiction.[119] Thus, the IRS contends that the Tax Court lacks authority to issue any relief to the taxpayer and should dismiss the case as moot.[120]

In support, the IRS points to Green‑Thapedi, which held that the Tax Court lacks overpayment and refund jurisdiction in CDP proceedings.[121] The Green‑Thapedi court reviewed the history of the Board of Tax Appeals, the predecessor of the Tax Court, and found that the Board lacked overpayment jurisdiction and refund jurisdiction until Congress expressly granted such powers in 1926 and 1988, respectively.[122] Even then, the Board possessed these powers only in deficiency proceedings.[123] Further, the Senate had previously proposed granting refund jurisdiction to the Tax Court in actions where the taxpayer already had a deficiency proceeding pending, but this proposal was rejected in conference.[124] The Green‑Thapedi court found that this legislative history clearly indicated that the Tax Court retains overpayment and refund jurisdiction only when expressly granted by Congress.[125] Since no legislation expressly grants overpayment and refund jurisdiction in CDP proceedings, the IRS contends that the Tax Court lacks such powers.[126]

Zuch contends that the Tax Court could grant her adequate relief if it were to rule on the dispute.[127] Adequate relief may come from the Tax Court’s power to issue a declaratory judgment.[128] The Tax Court is generally authorized to issue injunctive relief in CDP proceedings.[129] As a declaratory judgment is a “milder” form of an injunction, Zuch argues the Tax Court is also authorized to issue declaratory judgments.[130] Further, Zuch contends that the Declaratory Judgment Act does not abridge the Tax Court’s power to issue a declaratory judgment.[131]

The Declaratory Judgment Act authorizes federal courts “except with respect to Federal taxes” to “declare the rights and other legal relations of any interested party seeking such declaration.”[132] Thus, it would appear that the Declaratory Judgement Act expressly prohibits the Tax Court from issuing declaratory judgments. However, courts have uniformly held that a court must read the Declaratory Judgment Act, Internal Revenue Code, and Tax Anti‑Injunction Act together.[133] When read together, courts have determined that the Declaratory Judgment Act does not bar declaratory judgments where the court is otherwise permitted to issue an injunction.[134]

If the Tax Court is authorized to issue a declaratory judgment, such judgment could grant Zuch adequate relief for two reasons.[135] First, if granted, Zuch contends that the IRS would be “substantially likely” to issue Zuch a refund once the Tax Court issued such an authoritative holding, even if the IRS is not directly bound by the court’s determination.[136] Second, even if the IRS refuses to issue a refund, Zuch argues such declaration would still have a preclusive effect.[137] In a later refund suit between the parties, the refund tribunal would be required to order the IRS to issue the refund because the court could not relitigate the issues based on res judicata estoppel principles.[138] Contrarily, the IRS would be entitled to rely on a declaratory judgment in its favor in a subsequent suit.[139] Given the potential relief required to defeat a motion for dismissal based on mootness is a low burden and requires only that some relief may be granted, Zuch argues such declaratory relief satisfies this requirement.[140]

Conclusion 

While situations such as the one Zuch faces are rare, this case highlights the ongoing uncertainty surrounding the Tax Court’s authority in CDP proceedings.[141] Fortunately, the Supreme Court granted certiorari to resolve the present circuit split regarding the scope of the Tax Court’s power in CDP proceedings.[142] The Court will need to address both the extent of the Tax Court’s jurisdiction and the available remedies it may grant to determine whether Zuch’s case is moot. Depending on the Court’s decision, CDP proceedings may remain a venue of limited recourse, or it may be expanded to include powers like those in deficiency proceedings.

[1] See generally Zuch v. Comm’r, 97 F.4th 81 (3d Cir. 2024).

[2] Id. at 88–91.

[3] Id.

[4] Id. at 90.

[5] Id. at 91.

[6] Id.

[7] Id.

[8] Id.

[9] See id.

[10] The timeliness of a potential refund suit is disputed. See id. at 103 n.41. While the IRS originally asserted that the statute of limitations barred Zuch’s potential refund claim, it now contends that the statute of limitations may not have yet been triggered. Id. Generally, a two‑year statute of limitations is triggered once the taxpayer receives a notice of disallowance under I.R.C. § 6532(a)(1). Id. As Zuch never received a notice of disallowance, her refund suit should still be timely. Id. However, the Tucker Act presently bars any suit against the United States “unless the complaint is filed within six years after the right of action first accrues.” 28 U.S.C. § 2401(a). Zuch’s right to file a refund claim accrued over six years ago. Zuch, 97 F.4th at 103 n.41. Thus, the Tucker Act may bar her refund claim. Id. While the Court of Federal Claims has long held that I.R.C. § 6532 preempts the general statute of limitations under the Tucker Act, three district courts have held that I.R.C. § 6532 and the Tucker Act both apply to refund claims and that the Tucker Act serves as an outer bound for refund claims. Id. This dispute is ripe for discussion but will not be addressed further in this post.

[11] See Zuch, 97 F.4th at 103 n.41.

[12] Id. at 86.

[13] Compare id., with McLane v. Comm’r, 24 F.4th 316 (4th Cir. 2022), and Willson v. Comm’r, 805 F.3d 316 (D.C. Cir. 2015).

[14] See Zuch, 97 F.4th 81, cert. granted, No. 24-416, 2025 WL 65915 (2025) (mem.).

[15] See generally Caleb Smith, Zuch: Consequential on Many Levels, Procedurally Taxing (May 22, 2024), https://www.taxnotes.com/tax-notes-federal/litigation-and-appeals/zuch-consequential-many-levels/2024/05/27/7k6zz; Carlton M. Smith, Zuch Causes Circuit Split on CDP Mootness, Procedurally Taxing (May 28, 2024), https://www.taxnotes.com/tax-notes-today-global/litigation-and-appeals/zuch-causes-circuit-split-cdp-mootness/2024/06/03/7k792.

[16] Zuch, 97 F.4th at 86.

[17] John A. Miller & Jeffery A. Maine, The Fundamentals of Federal Taxation 11 (6th ed. 2023).

[18] Id.

[19] Id.

[20] Id.

[21] See Zuch, 97 F.4th at 92.

[22] See Sunoco Inc. v. Comm’r, 663 F.3d 181, 187 (3d Cir. 2011).

[23] See id.

[24] Zuch, 97 F.4th at 86–87.

[25] Id.

[26] Id.

[27] Julia Kagan, Notice of Deficiency: What it Means, Examples, Investopedia, https://www.investopedia.com/terms/n/notice-of-deficiency.asp [https://perma.cc/JLP5-RQBQ] (last updated July 19, 2020).

[28] Zuch, 97 F.4th at 86–87.

[29] Id. at 87.

[30] See id.

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] I.R.C. § 6330(d)(1).

[36] See id. § 6330(d)(1); Zuch, 97 F.4th at 87.

[37] I.R.C. § 6330(c)(2)(A).

[38] Zuch, 97 F.4th at 87–88.

[39] Id. at 88.

[40] See Willson v. Comm’r, 805 F.3d 316, 320–21 (D.C. Cir. 2015).

[41] See Brief of the Legal Services Center of Harvard Law School as Court Appointed Amicus Curiae in Support of Neither Party at 1, Zuch v. Comm’r, 97 F.4th 81 (3d Cir. 2024) (No. 22-2244), 2023 WL 4585393 at *1; see also McLane v. Comm’r, 24 F.4th 316 (4th Cir. 2022); Willson, 805 F.3d at 317–20.

[42] See I.R.C. § 6213(a).

[43] See I.R.C. §§ 6330(d)(1), 6330(c)(2)(A).

[44] I.R.C. § 6330(c)(2)(B).

[45] See I.R.C. § 6330(d)(1); Zuch, 97 F.4th at 87.

[46] See generally Smith, supra note 15.

[47] Zuch, 97 F.4th at 88–90.

[48] See Brief of the Legal Services Center of Harvard Law School as Court Appointed Amicus Curiae in Support of Neither Party at 1–3, Zuch v. Comm’r, 97 F.4th 81 (3d Cir. 2024) (No. 22-2244), 2023 WL 4585393 at *1–3; see also Zuch, 97 F.4th at 92.

[49] Zuch, 97 F.4th at 90.

[50] Id. at 92.

[51] See id. at 92 n.22.

[52] See Petition for a Writ of Certiorari at 8, Zuch v. Comm’r, 2025 WL 65915 (2025) (No. 24-416), 2024 WL 4504215 at *10.

[53] See id.

[54] See id. at 8–11.

[55] See id.

[56] Mootness is rooted in the Constitution’s restriction of federal court power to “[c]ases” and “[c]ontroversies” in Article III. U.S. Const. art III, § 2. As the Tax Court is an Article I court, the Tax Court is not technically constrained by mootness doctrine. However, the Tax Court has voluntarily applied this limitation to itself. See Zuch, 97 F.4th at 92; Battat v. Comm’r, 148 T.C. 32, 46 (2017); Zevalkink v. Brown, 102 F.3d 1236, 1243 (Fed. Cir. 1996).

[57] See Zuch, 97 F.4th at 93.

[58] See Reply Brief for the Petitioner at 3–6, Zuch v. Comm’r, 97 F.4th 81 (2024) (No. 24-416), 2024 WL 5233523 at *3–6.

[59] See id.

[60] See id. at 13–14.

[61] See id. at 14–15; Brief in Opposition at 7, Zuch v. Comm’r, 2025 WL 65915 (2025) (No. 24-416), 2024 U.S. S. CT. Briefs Lexis 4363 at *7.

[62] See Petition for a Writ of Certiorari, supra note 52, at 8–12. See generally McLane v. Comm’r, 24 F.4th 316 (4th Cir. 2022); Willson v. Comm’r, 805 F.3d 316 (D.C. Cir. 2015).

[63] McLane, 24 F.4th at 318.

[64] See I.R.C. § 6330(c)(2).

[65] See Petition for a Writ of Certiorari, supra note 52, at 8–12.

[66] See id. See generally McLane, 24 F.4th 316; Willson, 805 F.3d 316.

[67] See Petition for a Writ of Certiorari, supra note 52, at 8–12.

[68] See id.

[69] See id.

[70] McLane, 24 F.4th at 318–19.

[71] See Brief of the Legal Services Center of Harvard Law School as Court Appointed Amicus Curiae in Support of Neither Party at 5, Zuch v. Comm’r, 97 F.4th 81 (3d Cir. 2024) (No. 22-2244), 2023 WL 4585393 at *5.

[72] See Petition for a Writ of Certiorari, supra note 52, at 8–12.

[73] See Brief in Opposition, supra note 61, at 24–26.

[74] See id.

[75] See id.

[76] See id. at 24–30.

[77] See id.

[78] Id. at 25.

[79] See id. at 24–30.

[80] See id.

[81] See id. at 26–27.

[82] See id. at 27.

[83] See id. at 27–30.

[84] See id.

[85] See id. at 27–28.

[86] See id. at 28 (quoting Coba v. Ford Motor Co., 932 F.3d 114, 120 (3d Cir. 2019)).

[87] See id. at 30 (quoting Coba, 932 F.3d at 120).

[88] See id. at 35–36.

[89] See id. (quoting Guerrero-Lasprilla v. Barr, 589 U.S. 221, 229 (2020)).

[90] See id.

[91] See Greene-Thapedi v. Comm’r, 126 T.C. 1, 15 (2006) (Vasquez, J., dissenting).

[92] See id.; see also I.R.C. § 6330.

[93] See id.; Brief in Opposition, supra note 61, at 35–36.

[94] Zuch v. Comm’r, 97 F.4th 81, 91 (3d Cir. 2024).

[95] See Petition for a Writ of Certiorari, supra note 52, at 12–14.

[96] Zuch, 97 F.4th at 95–96.

[97] Id.

[98] See, e.g., id. at 91.

[99] Id. at 94–95.

[100] See I.R.C. § 6512(b)(4).

[101] See Greene-Thapedi v. Comm’r, 126 T.C. 1, 7–8 (2006); Belloff v. Comm’r, 996 F.2d 607 (2d Cir. 1993).

[102] See Zuch, 97 F.4th at 95 n.26.

[103] See Petition for a Writ of Certiorari, supra note 50, at 12–14; Zuch, 97 F.4th at 95–96.

[104] See Petition for a Writ of Certiorari, supra note 50, at 7–8; Zuch, 97 F.4th at 95–96.

[105] Zuch, 97 F.4th at 95.

[106] Id.

[107] Id.

[108] Id.

[109] Id.

[110] Id.

[111] Id. at 95–97.

[112] See id. The IRS may “‘not unilaterally oust the Tax Court from jurisdiction’—neither in a deficiency case nor in a CDP case.” Vigon v. Comm’r, 149 T.C. 97, 104 n.3 (2017).

[113] Zuch, 97 F.4th at 97.

[114] Id. at 98–99.

[115] See id. at 101; Brief in Opposition, supra note 61, at 32.

[116] Brief in Opposition, supra note 61, at 36.

[117] See Petition for a Writ of Certiorari, supra note 52, at 12–14.

[118] See Zuch, 97 F.4th at 101–04.

[119] See Petition for a Writ of Certiorari, supra note 52, at 12–14.

[120] See id.

[121] Greene-Thapedi v. Comm’r, 126 T.C. 1, 8–9 (2006).

[122] Id. at 8–11.

[123] Id. at 9–10.

[124] Id. at 10. “The Tax Court has no jurisdiction to determine whether a taxpayer has made an overpayment except in the context of a deficiency proceeding.” H.R. Rep. No. 100-1104, at 233 (1988) (Conf. Rep.).

[125] Greene-Thapedi, 126 T.C. at 8–11.

[126] See id. at 8–12.

[127] See Brief in Opposition, supra note 61, at 31–34, 36–37.

[128] Id.

[129] See Zuch v. Comm’r, 97 F.4th 81, 101–04 (3d Cir. 2024); I.R.C. §§ 6330(d), (e).

[130] Brief in Opposition, supra note 61, at 36–37.

[131] Id.

[132] 28 U.S.C. § 2201(a) (emphasis added).

[133] Brief in Opposition, supra note 61, at 36–37; see, e.g., Cohen v. United States, 650 F.3d 717, 727–28 (D.C. Cir. 2011); CIC Servs., LLC v. I.R.S., 925 F.3d 247, 250 n.3 (6th Cir. 2019), rev’d on other grounds, 593 U.S. 209 (2021).

[134] Brief in Opposition, supra note 61, at 36–37. The Tax Anti-Injunction Act generally prohibits suits “restraining the assessment or collection of any tax.” I.R.C. § 7421(a). However, the Tax Anti-Injunction Act exempts CDP proceedings from this general rule. See I.R.C. §§ 7421(a), 6330(e)(1). Courts construe the Tax Anti-Injunction Act and the Declaratory Judgment Act as coterminous. Zuch, 97 F.4th at 102; see also Cohen, 650 F.3d at 727. Consequently, courts have determined that the Declaratory Judgment Act must be interpreted to permit declaratory judgments where the Tax Anti-Injunction Act authorizes injunctions. Cohen, 650 F.3d at 730; Zuch, 97 F.4th at 102. This interpretation is necessary because it would “def[y] common sense” to bifurcate powers which “have the same prohibitory effect on the federal government’s ability to assess and collect taxes.” Cohen, 650 F.3d at 730 (quoting Wyo. Trucks Ass’n v. Bentsen, 82 F.3d 930, 933 (10th Cir. 1996)); Zuch, 97 F.4th at 102. As a result, the Third Circuit held that the Tax Court may issue declaratory judgments in CDP proceedings notwithstanding the general prohibition in the Declaratory Judgment Act. Zuch, 97 F.4th at 102.

[135] Brief in Opposition, supra note 61, at 32–34.

[136] Id. (quoting Franklin v. Massachusetts, 505 U.S. 788, 803 (1992)).

[137] Id.

[138] Id.

[139] See id.

[140] See id.; Zuch v. Comm’r, 97 F.4th 81, 93 (3d Cir. 2024).

[141] See generally Zuch, 97 F.4th 81.

[142] See Zuch v. Comm’r, No. 24-416, 2025 WL 65915 (S. Ct. 2025).

By Will Wood

Introduction

As artificial intelligence (AI) grows more powerful, so do its risks.[1] From misinformation to security threats, lawmakers are scrambling to regulate the technology before it spirals out of control.[2] Yet in California, despite overwhelming legislative support, Governor Gavin Newsom vetoed California’s SB 1047 (the Bill), one of the nation’s first comprehensive AI safety bills.[3] He argued that its “stringent” regulations could burden the state’s burgeoning AI industry as global competition to develop the best AI models intensifies.[4] The Bill was going to require developers to use reasonable care to prevent critical harm, establish and review safety protocols, conduct annual third-party audits, report incidents and compliance with the requirements to the California Attorney General, and protect whistleblowers.[5] The Bill would have granted the attorney general enforcement authority and would have established a consortium to oversee AI regulations and safety frameworks.[6]

The perceived need for regulation results from the significant risks that AI poses, but the potential benefits of these models require a delicate balancing of interests so that the industry can thrive instead of being smothered in its infancy.[7] These risks include the models potentially evolving without the owner being able to exercise control over their evolution, coupled with the fact that AI does not have ethical norms and is unmoved by any moral compass.[8]  Because of these fears, both industry heads and lawmakers have called for regulation.[9] However, the recent failure of California’s bill highlights a fundamental challenge in regulating AI industries: how can a government safely regulate an industry with vast, complex potential to benefit humanity without being heavy-handed and stifling its early development?[10] This blog post will summarize the need for AI regulation, compare how different countries are regulating AI, review theories for AI regulation, and propose a solution advocating for governments to incorporate regulatory sandboxes to avoid stifling the industry with excessive regulation.[11]

I. The Rise of AI: Potential and Perils

To understand why AI needs regulation, it is important to comprehend what generative AI is, how it is developed, and its potential benefits and risks. Generative AI is a type of artificial intelligence that uses neural networks and deep learning models to create content through recognizing patterns within large datasets.[12] These neural networks, which the structure of the human brain inspires, consist of interconnected nodes that process data, enabling the AI to learn, adapt, and generate new content.[13]

Training AI involves several stages, beginning with data collection, where extensive and diverse datasets form the foundation for learning.[14] The next stage, pre-training, is when AI uses unsupervised learning to identify underlying structures and relationships within the data, developing a broad understanding without focusing on any specific task.[15] This stage equips the AI with the ability to generate data based on these insights.[16] Fine-tuning follows, which involves supervised learning guided by human-labeled data to refine the model for specific applications.[17] Through this process, AI becomes capable of generating content across various domain—ranging from text and images to speech and interactive media—emulating human creativity and communication.[18] AI’s ability to learn, adapt, and generate content, combined with its skill in identifying patterns within large datasets, holds the potential to turbocharge the global economy and transform numerous industries.

The AI industry is predicted to contribute trillions to the global economy in the near future and has the potential to revolutionize various sectors.[19] In pharmaceuticals, generative AI can design novel chemical compounds for designing and discovering new and effective drugs.[20] In manufacturing, AI enhances productivity by predicting equipment failures.[21] Urban planners use AI to simulate cities and optimize transportation networks.[22] Financial institutions leverage it to forecast market movements more accurately.[23] In education, AI provides advanced materials to improve learning and assists in comprehending complex materials.[24] Legal professionals use AI to precisely analyze and summarize contracts.[25] It can refine navigation in self-driving cars, which reduces road accidents and fatalities.[26] AI-driven logistics analysis makes supply chains more efficient and improved weather prediction saves lives from natural disasters.[27] In healthcare, a Stanford study revealed that AI outperforms human pathologists in diagnosing lung cancer.[28]

These expansive benefits come with the risk that AI can become an incredibly dangerous and discriminatory tool if left unchecked.[29] One example of this is the Twitter bot Tay, launched by Microsoft, which was a software program designed to interact with and entertain people on Twitter through casual conversation.[30] Within 24 hours, the bot began tweeting racial slurs and hateful comments because the algorithm learned from users who had used inappropriate language when interacting with it.[31] ChatGPT, an AI that generates human-like content, has also produced discriminatory content when asked to determine whether a person was a good scientist, as it showed a bias favoring white males.[32] Further, AI raises privacy concerns because the developers retain all user-uploaded data to improve, strengthen, and train the models.[33] OpenAI, Google, and Anthropic are companies developing AI that obscure the sources of their training data and have incredibly permissive user data collection and use policies.[34]

Another potential danger is AI’s unique ability to augment and radicalize echo chambers.[35] Echo chambers are “environments in which the opinion, political leaning, or belief of users about a topic gets reinforced due to repeated interactions with peers or sources having similar tendencies and attitudes.”[36] AI can be personalized to individual users, including being customized to reflect the user’s ideological perspectives, religious beliefs, and political opinions.[37] As the Twitter bot Tay showed, the personalization of AI can insulate users from public dialogue by generating content that reinforces their beliefs and worldviews rather than exposing them to the diverse discourse essential for a thriving democracy.[38]

Finally, militaries around the world have implemented machine learning algorithms that can act independently of any human.[39] The United States deployed autonomous drones that used facial recognition software and algorithms to hunt down Libyan Warlord Khalifa Haftar’s army.[40] Israel and South Korea built autonomous sentry guns that use facial recognition to fire at people.[41] Israel has deployed these autonomous guns in the Gaza strip.[42] If AI is not swiftly regulated, warfare could start to occur at speeds that remove human decision making from the equation.[43] Militaries could fight entire battles without any input from a human being.[44] The major problem with allowing AI to make judgments on its own is that these machines are not programmed to comprehend and deploy social responsibility, ethics, justice, fairness, or fear of retribution.[45]

A. AI Regulation Overview

Regulating AI presents a twofold challenge.[46] First, because AI learns by absorbing vast amounts of data and identifying patterns, effective regulation must strike a balance between allowing unrestricted learning and controlling the content it generates.[47] Second, regulation must establish a framework for ethical guidelines that AI systems should follow.[48] However, determining who defines these ethical standards is complex.[49] Additionally, since AI models are designed to adapt and evolve based on new data, regulation must not only protect people from potential harms but also account for the dynamic nature and continuous improvement of these technologies.[50] Despite the challenge of regulating AI, many governments and scholars have proposed legislation attempting to regulate this new industry.[51] A brief overview of the different proposals will follow so that the reader can understand some of the different options available when regulating AI.

The new AI Bill attempted to regulate AI developers by imposing stringent safety measures and oversight requirements to prevent unreasonable risks of critical harm from AI models.[52] At the core of these requirements was a duty of reasonable care, which would have obligated developers to proactively ensure that their AI systems do not pose significant threats, such as enabling mass casualties, severe property damage, or other forms of grave harm.[53] This duty would have been assessed based on factors like the quality of the developer’s safety protocols, adherence to those protocols, and how these measures compare with industry standards.[54]

Before training AI models, the Bill would have required developers to implement robust safety measures, including cybersecurity protections and shutdown capabilities, to mitigate risks of unauthorized access and misuse.[55] A comprehensive safety and security protocol would have been established, written, and regularly reviewed, with designated senior personnel overseeing its implementation.[56] Developers would have been required to publish redacted versions of the protocol and provide compliance documentation to the California Attorney General, who could have requested unredacted versions for enforcement.[57] Additionally, developers would have been required to undergo annual third-party audits, starting in 2026, to verify compliance with the Bill’s requirements.[58] The Bill would have required any AI safety incidents to be reported within 72 hours, and developers would have had to notify the attorney general if models were used beyond training, evaluation, or legal compliance.[59] Whistleblower protections would have been provided for employees disclosing violations, and enforcement authority over any violations would have been granted to the California Attorney General, who could have sought civil penalties, damages, or other relief for violations.[60] Of course, this Bill failed to become law, and the federal government has likewise failed to establish any significant regulations regarding AI.[61] However, the United States is not the only country that has begun the process of regulating AI.

B. Overview of International Regulatory Approaches to AI

China’s approach to algorithmic regulation is encapsulated in its Provisions on Administration of Algorithmic Recommendation in the Internet Information Service (PAAR).[62] These regulations apply to all entities using algorithmic recommendation technology across five classifications, from personalized advertising to content filtering.[63] Unlike other regulations that categorize entities by scale, the PAAR encompasses small, medium, and large companies without distinction.[64] The PAAR mandates a transparency regime requiring entities to register algorithmic practices, though submissions seemingly purposefully lack sufficient detail for thorough oversight.[65] It also outlines assessment guidelines, albeit with a focus on government-led supervision rather than detailed self-regulation.[66] Sanctions for PAAR violations range from fines to public criticism, but the monetary penalties are relatively minor for larger corporations.[67] Overall, China’s approach to AI regulation relies more on government supervision rather than self‑governance by companies.[68]

In the European Union, the AI Act (the Act) provides an extensive framework for regulating AI systems by defining the AI covered under the Act broadly to include machine learning, logic‑based, and statistical approaches to AI models.[69] It further categorizes AI systems into four types based on the risk the models pose to people: (1) banned systems that pose unacceptable risks, such as the government using AI to assign scores to people’s social ranking; (2) high-risk applications that must meet specific legal requirements, like CV-scanning tools; (3) systems requiring increased transparency, such as chatbots and biometric categorization systems; and (4) all other AI systems that are categorized as low-risk applications and remain largely unregulated.[70] The Act mandates transparency for systems that interact with humans, detect emotions, or generate content, requiring these systems to disclose relevant features and maintain a public EU database.[71] The information required to be kept in the database includes the system’s capabilities and limitations, data, training, testing, and validation process used.[72] High-risk systems must also conduct self-assessments based on quality management standards, which are uploaded to several governmental entities and reviewed.[73] If the entities determine the standards are in compliance with the Act they will issue certifications.[74] Non-compliance can result in fines of up to $10 million EUR or 3% of annual revenue, whichever is higher.[75]

C. Suggested Regulatory Approaches

In a law review article, one legal scholar proposed interesting regulatory strategies like reforming liability shields, enhancing competition, and applying information fiduciary principles to the data AI developers train their models with.[76] Reforming liability shields could attempt to hold AI developers accountable for AI content that is illegal or produces illegal results while balancing the need for free speech.[77] This could involve compelling platforms to adopt reasonable responses to illegal content like promulgating standards for which content will be moderated.[78] Enhancing competition in the AI industry promotes better user-centered practices, as increased rivalry incentivizes companies to offer improved content moderation and privacy protections.[79] Interoperability between platforms and preventing vertical integration can allow smaller AI developers to thrive and meet niche needs.[80] Applying an information fiduciary model places ethical obligations of care, confidentiality, and loyalty on companies handling personal data, promoting responsible use and transparency instead of the current system’s incentives to exploit data for profit and training.[81] For generative AI, this fiduciary approach is particularly critical, as the technology’s ability to analyze user data and create personalized content mimicking people’s speech requires developers to prioritize user welfare and data protection.[82]

In another law review article, the commentators suggests mandating human oversight for AI systems, providing the moral and ethical norms that machines lack to ensure decisions align with legal requirements.[83] Such oversight would play a key role in this system by correcting AI errors, justifying AI decisions to enhance legitimacy, and maintaining accountability for the outcomes of these AI decisions.[84] This approach shifts focus from solely ex-post accountability to ex-ante compliance, as this could potentially provide the necessary conscience and judgment that AI systems lack.[85]

One last suggestion by Professor Catherine Sharkey, a law professor who specializes in regulatory policy, highlights the role of liability insurance in shaping standards to mitigate AI-related harms.[86] Liability insurance has played a key role in shaping the rules and safety standards for products over the past 75 years.[87] For AI, liability insurers could use their knowledge of risk to advise AI companies on how to reduce potential harms, as part of setting insurance premiums or developing standards in their policies.[88] For instance, Digital Diagnostic’s AI-based diagnostic device, IDx-DR, carries malpractice insurance, indicating that AI designers are preparing for possible liability.[89] If a third-party liability insurance market emerges for AI, insurance companies could assist in gathering data, enhancing risk management for AI developers, and developing standards for future regulations.[90]

II. Overview of Regulatory Sandboxes

With the wide array of potential regulatory frameworks available, it is exceedingly complicated—if not impossible—to find a single solution capable of addressing all the risks associated with AI. The rapid evolution of AI technologies and their diverse applications across various sectors make it difficult to craft universal regulations.[91] However, this does not mean that legislatures are powerless in the face of these challenges.

One approach is regulatory sandboxes, which have been used to manage emerging industries that are difficult to regulate.[92] Sandboxes allow startups, companies, and tech firms to test new products under regulatory supervision, providing policymakers with firsthand insights developing technologies and business models.[93] This approach provides a proactive regulatory environment, allowing lawmakers to refine regulations based on the data they receive rather than imposing rigid regulations that may stifle innovation or prove to be ineffective.[94]

One prominent regulatory sandbox in the United States has been Utah’s legal services industry experiment.[95] In 2020, the Utah Supreme Court established a regulatory sandbox that permitted non-lawyer-owned firms and other non-legal entities to provide certain basic legal services, such as filling out marriage, business, and immigration forms.[96] This initiative has enabled close supervision of a traditionally rigid industry while still encouraging innovation.[97] The success of regulatory sandboxes demonstrates that legislatures have viable tools to regulate rapidly evolving industries while still providing oversight and progress.[98]

III. Analysis of the Viability of AI Regulatory Sandboxes

AI is particularly well-suited for regulatory sandboxes because its diverse applications across multiple sectors make a single, one-size-fits-all regulatory framework less effective.[99] Sandboxes provide the flexibility to tailor regulations based on sector-specific needs, allowing regulators to test and refine rules for different AI contexts, like healthcare, finance, and manufacturing.[100] Moreover, AI’s rapid technological advancement creates gaps between innovation and regulatory capacity, which sandboxes can bridge by enabling continuous observation and guidance.[101] By fostering an evidence-based, iterative approach to regulation, regulatory sandboxes provide a mechanism for balancing innovation with oversight, without the fear of overregulating or stifling advancements.[102] Given these advantages, the United States should implement AI regulatory sandboxes to encourage innovation while developing adaptable, effective regulations.[103]

Conclusion

California’s AI Safety Bill, though vetoed, represents an important effort to address the risks of AI development and sets the stage for a necessary debate on regulating this transformative technology.[104] While AI offers immense potential to revolutionize industries, the risks of unchecked development—including biases, privacy violations, echo chambers, and militarization—necessitate thoughtful regulation.[105] The challenges of regulating AI, particularly its evolving nature, make traditional, static regulations difficult to implement effectively without stifling innovation.[106]

A more effective approach is the adoption of regulatory sandboxes—controlled environments where AI technologies can be tested under regulatory supervision to inform the development of effective and nuanced rules.[107] Sandboxes allow regulators to observe real-world AI applications across sectors, providing evidence-based insights to guide flexible, iterative policy development.[108] By implementing regulatory sandboxes, the United States can address the complex challenge of regulating AI effectively while promoting growth, remaining competitive with other nations, and ensuring public safety.

 

[1] Qiuyi Pan, Note, Exploring Algorithmic Governance in International Trade Law: An Analysis of The United States, European Union, and China, 41 Ariz. J. Int’l & Comp. L. 134, 140–45 (2024).

[2] E. Jason Albert & Jessica E. Brown, Beyond the Iudex Threshold: Human Oversight As the Conscience of Machine Learning, 22 Colo. Tech. L.J. 269, 272 (2024).

[3] Bobby Allyn, California Gov. Newsom Vetoes AI Safety Bill That Divided Silicon Valley, NPR (Sept. 29, 2024, 6:18 PM), https://www.npr.org/2024/09/20/nx-s1-5119792/newsom-ai-bill-california-sb1047-tech [https://perma.cc/3GTD-UBVT].

[4] Id.

[5] Kirk J. Nahra, Arianna Evers, Ali A. Jessani & Nancy Stephen, California Greenlights Two Significant AI Bills, WilmerHale (Sept. 16, 2024), https://www.wilmerhale.com/en/insights/blogs/wilmerhale-privacy-and-cybersecurity-law/20240916-california-greenlights-two-significant-ai-bills [https://perma.cc/2YKG-XYCA].

[6] Id.

[7] Ryan Nabil, Artificial Intelligence Regulatory Sandboxes, 19 J.L. Econ. & Policy 295, 345 (2024).

[8] Albert & Brown, supra note 2, at 272.

[9] Id.

[10] Id. at 274; Gilad Abiri, Generative AI As Digital Media, 15 Harv. J. Sports & Ent. L. 279, 289–291 (2024) (describing how AI could benefit humanity in numerous ways, including developing pharmaceutical innovations, bolstering manufacturing productivity, making urban planning more efficient, forecasting market movements, and tailoring personal medicine regimens among many other benefits).

[11] See generally Albert & Brown, supra note 2, at 272 (providing examples of the dangers of AI); Dorian Chang, AI Regulation for the AI revolution, 2023 Sing. Compar. L. Rev. 130 (comparing different regulatory schemes for AI); Nabil, supra note 7 (comparing the different regulatory schemes of countries).

[12] Abiri, supra note 10, at 286–87.

[13] Id. at 287.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id. at 287–88.

[19] Anand S. Rao & Gerard Verwij, Sizing the Prize: What’s the Real Value of AI for Your Business and How Can You Capitalise, PricewaterhouseCoopers, https://www.pwc.com/gx/en/issues/analytics/assets/pwc-ai-analysis-sizing-the-prize-report.pdf [https://perma.cc/6UN7-DT8D] (predicting $15.7 trillion contributed to the global economy by AI during 2030 alone).

[20] Abiri, supra note 10, at 289.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Krista Conger, Computers Trounce Pathologists in Predicting Lung Cancer Type, Severity, Stan. Med. (Aug. 16, 2016), https://med.stanford.edu/news/all-news/2016/08/computers-trounce-pathologists-in-predicting-lung-cancer-severity.html [https://perma.cc/25QA-NAEN].

[29] See Albert & Brown, supra note 2, at 295-96.

[30] Pan, supra note 1, at 140–41.

[31] Id. at 141.

[32] Id.

[33] Abiri, supra note 10, at 304–05.

[34] Id.; Privacy Policy, OpenAI, https://openai.com/policies/row-privacy-policy [https://perma.cc/7LGV-XSER] (effective Nov. 4, 2024).

[35] Abiri, supra note 10, at 300–01.

[36] Id. at 298–99 (quoting Matteo Cinelli, Gianmarco De Francisci Morales, Alessandro Galeazzi & Michele Starnini, The Echo Chamber Effect on Social Media, 118 Proc. Nat’l Acad. Scis., no. 9, 2021, at 1, https://www.pnas.org/doi/epdf/10.1073/pnas.2023301118 [https://perma.cc/TW5K-SZ9R]).

[37] Id. at 299–300.

[38] Id. at 300.

[39] Albert & Brown, supra note 2, at 281.

[40] Id. (citing Gerrit De Vynck, The U.S. Says Humans Will Always Be in Control of AI Weapons. But the Age of Autonomous War Is Already Here, Wash. Post (July 7, 2021, 10:00 AM), https://www.washingtonpost.com/technology/2021/07/07/ai-weapons-us-military/ [https://perma.cc/P3YW-VE3K]).

[41] Id.

[42] Id.

[43] Id. at 281-82 (quoting De Vynck, supra note 40).

[44] See id.

[45] Albert & Brown, supra note 2, at 282.

[46] Id.

[47] Id.

[48] Id.

[49] Id. at 285-86 (explaining that programming ethical standards into AI bots is almost impossible as you would have to account for every eventuality the AI could encounter).

[50] Id. at 285.

[51] Pan, supra note 1, at 145–61; Nabil, supra note 7, at 307-26.

[52] Nahra et al., supra note 5.

[53] Id.

[54] Id.

[55] Id.

[56] Id.

[57] Id.

[58] Id.

[59] Id.

[60] Id.

[61] Guy Brenner, Jonathan Slowik & Margot Richard, Trump Alters AI Policy with New Executive Order, Proskauer (Jan. 28, 2025), https://www.lawandtheworkplace.com/2025/01/shifting-ai-policies-president-donald-trump-issues-new-ai-executive-order-and-revokes-another [https://perma.cc/5YTR-2SPV] (providing that Trump’s Executive Order simply revokes all previous AI policies and orders new ones to be made that are free from bias or social agendas).

[62] Pan, supra note 1, at 150.

[63] Id. at 151.

[64] Id.

[65] Id. at 151-52.

[66] Id. at 152-53.

[67] Id. at 153.

[68] See id. at 150-53.

[69] Id. at 154.

[70] Id.

[71] Id. at 156.

[72] Id.

[73] Id. at 156-57.

[74] Id. at 157.

[75] Id.

[76] Abiri, supra note 10, at 324–26.

[77] Id. at 321.

[78] Id. at 322.

[79] Id. at 323.

[80] Id. (quoting Jack M. Balkin, To Reform Social Media, Reform International Capitalism, in Social Media, Freedom, and the Future of Our Democracy 127 (Lee C. Bollinger & Geoffrey R. Stone eds., 2022)).

[81] Id. at 324–26.

[82] Id. at 325–26.

[83] Albert & Brown, supra note 2, at 296.

[84] Id. at 296-97.

[85] Id. at 297.

[86] Catherine M. Sharkey, A Products Liability Framework for AI, 25 Colum. Sci. & Tech. L. Rev. 240, 258–59 (2024).

[87] Id. at 258.

[88] Id. at 259.

[89] Id.

[90] Id.

[91] See Nabil, supra note 7, at 305-06.

[92] Id. at 295-96 (explaining that regulatory sandboxes are government programs that provide companies the opportunity to offer innovative products and services under close regulatory supervision for a limited period).

[93] Id.

[94] Id.

[95] Id. at 296.

[96] Id.

[97] Id. at 296-97.

[98] Id. at 295-96.

[99] Id. at 304-06.

[100] Id. at 305.

[101] Id. at 304.

[102] Id. at 304-07.

[103] Id. at 306-07.

[104] Allyn, supra note 3.

[105] Abiri, supra note 10, at 289-302; Pan, supra note 1, at 140-41; Albert & Brown, supra note 2, at 281-82.

[106] Albert & Brown, supra note 2, at 282-85.

[107] Nabil, supra note 7, at 305-07.

[108] Id. at 305.

By Kris Bromley

Introduction

Imagine a family gathering after the death of one of their own. The family member that passed away had all her affairs in order, distributing her estate through a will that she signed years ago. Everyone in the family anticipates receiving specific items she bequeathed to each of them—a jewelry collection to her only granddaughter, a house to one of her sons, a collection of books to her sister. Each of them had conversations with the decedent about the items she wished for each to have. However, after attempting to get each of these items, a court informs the family that the will is not enforceable because the will was a notarial testament, and the decedent initialed the first page instead of signing her entire name. Instead, the court will divide everything equally between her two sons, one of whom has not spoken to her for twenty years. While the son who remained in contact with his mother desires to uphold the will, the other son does not and instead wants to receive half of her estate as he would be entitled to under intestacy law. Now, those who expected to receive both sentimental and valuable gifts will receive nothing—all because of a small issue with the specific formal requirements of the will.

A notarial testament is a will that is written and executed in the presence of a notary and witnesses.[1] Louisiana Civil Code articles 1577–80.1 require individuals to execute notarial testaments according to specific formal requirements.[2] A notarial testament must be written, dated, and signed by the testator on every page and at the end of the testament while in the presence of a notary and two witnesses, and include a statement that the testator declared that the document is his or her testament. Further, the notary and two witnesses must sign an attestation clause in which the witnesses attest to comply with the formal requirements.[4] The Louisiana legislature provides a model attestation clause in the Civil Code:

In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this ____ day of _________, ____.[5]

An attestation clause within a notarial testament must either be identical or “substantially similar” to the model attestation clause.[6] If the formalities provided for a notarial testament are not followed, the testament is absolutely null.[7]

Because of the numerous formal requirements of notarial wills, jurisprudence shows various examples of defective compliance. One significant area of debate in recent years is strict or substantial compliance. Some courts following the strict compliance approach invalidate wills that contain only minor defects without any indication of fraud.[9] Historically, courts required strict compliance with all formal requirements, invalidating any will that did not explicitly display all requirements.[10] Conversely, some Louisiana courts tolerate deviations from the formal requirements to enforce notarial wills.[11] This approach is expressed as the doctrine of substantial compliance.

I. The Strict v. Substantial Compliance Debate

Two primary rationales support the strict compliance approach: the floodgates argument and the separation-of-powers argument.[12] The floodgates argument holds that formal requirements exist to protect against issues such as fraud, mistake, and undue influence.[13] Accordingly, proponents worry courts relaxing the standard for formal requirements may open the floodgates to upholding notarial testaments with an abundance of defects, increasing the likelihood of fraud, mistake, or undue influence.[14] Alternatively, the separation-of-powers argument holds that the legislature creates law and the court merely interprets and applies it.[15] When the law is clear, courts cannot ignore it for the purposes of pursuing justice or applying the “spirit” of the law.[16] Instead, the strict compliance approach advocates for judges to apply the formal requirements even if doing so results in invalidating notarial testaments.

This reflects effort to uphold and enforce wills that demonstrate “testamentary intent” but merely lack small details required by the formal requirements.[18] Despite the perils strict compliance advocates warned about, courts applying this approach have not seen a considerable rise in the risk of fraud.

In Louisiana, this debate of applying substantial compliance to notarial testaments largely began in Succession of Guezuraga. In Guezuraga, the testator did not sign the testament after the attestation clause, but instead signed after the will’s dispositive provisions.[21] The Louisiana Supreme Court upheld the will, applying a substantial compliance approach in its explanation that the statute does not require strict interpretation.[22] The Court considered what constituted substantial compliance and explained it should look to whether the defect in the will concerns fraud. If a defect indicates an increased likelihood that fraud occurred, the court should consider the defect substantial and not enforce the will.[24] Alternatively, if a defect does not indicate the occurrence of fraud, the court should disregard the defect and enforce the will despite the lack of formal requirements.[25]

After the Guezuraga decision in 1987, Louisiana courts mostly applied a substantial compliance approach and permitted minor formal defects in wills, looking to whether the defects indicated a likelihood of fraud.[26] In 2017, the Louisiana Supreme Court changed course in Succession of Toney.[27] In Toney, the Court explained that notarial testaments are invalid and unenforceable when they contain “material deviations” from the formal requirements even if there is no indication of fraud.[28] The testament in Toney did not have a full signature on every page and did not have a sufficient attestation clause.[29] The Court found that initials fall short of the signature requirement, particularly here where the initials were in print and not cursive, and that the language in the will was not substantially similar to the requirements of the attestation clause.[30] While the Court quoted and applied the Guezuraga substantial compliance language, it distinguished the case as only having a minor defect while the Toney testament had multiple “material” deviations—explaining that a testament including material deviations should not also be required to show an indication of fraud.[31] Instead, the Court found that all of the defects in the Toney testament showed a lack of substantial compliance, resulting in an absolute nullity.

In 2021, the Court again focused on fraud in Succession of Liner, finding that a court must determine whether the testator was sufficiently protected against fraud through the formalities evidenced in the will.[33] Thus, if a court’s analysis reveals an increased likelihood of fraud, the court should consider the deviations material and nullify the will.[34] The Liner Court upheld a will when its attestation clause did not state that the testator signed it on every page and used different language than the Civil Code’s model attestation clause.[35] The Court found that the testator was sufficiently protected from fraud after analyzing the language used in the clause and the contextual circumstance that the testator did in fact sign every page indicated. Significantly, Liner overruled Toney to the extent Toney stood for the proposition that “an aggregate of slight deviations constitute[s] a material deviation” regardless of whether their cumulative effect indicated fraud.[37]

After this ruling, Louisiana appellate courts were unsure about how to apply the substantial compliance approach that the Louisiana Supreme Court seemingly returned to in Liner.[38] The issue in Liner only surrounded the attestation clause.[39] Is the Liner holding of evaluating substantial compliance and allowing defects that do not indicate fraud limited to defects within an attestation clause? Alternatively, are courts permitted to apply this approach of substantial compliance to any defect within a notarial testament? One such area of debate is the signature requirement.

II. Signature Requirement

One requirement of a notarial testament is that the testator must sign each page and at the end of the document.[40] As seen in Guerzuraga, the testator must sign at the end of the will’s substantive provisions but is not required to sign after the attestation clause.[41] However, an open question existed regarding whether initials were acceptable as opposed to a formal signature. Historically, Louisiana courts have been flexible when legislation requires a signature.[42] Even after Toney, leading scholars in Louisiana succession law did not believe that initialing a will, rather than fully signing it, should invalidate the entire will.[43]

After Succession of Liner, the Louisiana Fourth Circuit Court of Appeal confronted the issue of substantial compliance as applied to the signature requirement of the notarial testament.[44] In Succession of McKlinski, the testator executed a three‑page notarial testament.[45] On the first page, she signed with only her cursive initials.[46] On pages two and three, she signed using a full signature.[47] The testator’s son argued that the testament was absolutely null because the first page did not include a full signature, advocating for strict compliance with the formal requirements.[48] While the testator’s son argued that applying Toney should result in the testament’s nullity, the Fourth Circuit determined that Liner completely overruled Toney.[49] Further, the Fourth Circuit explicitly rejected the argument that Liner only applies to attestation clauses and not the signature requirement.[50] Instead, the court relied on prior Fourth Circuit jurisprudence that held that initials suffice for the signature requirement.[51] After this decision, the Louisiana Supreme Court denied writs, leaving this issue unresolved from 2021 until the Court finally addressed the issue in 2024 in Succession of Frabbiele.[52]

III. Succession of Frabbiele

In Succession of Frabbiele, the testator executed a three‑page notarial testament, initialing the first two pages with cursive initials and signing the third with a full signature.[53] The lower courts enforced the will, finding that the testament substantially complied with the formal requirements, like the court in McKlinski.[54] The Louisiana Supreme Court found this issue to be a “simple matter of statutory application.”[55] Article 1577, listing the formal requirements of a valid notarial testament, states that “the testator shall . . . sign his name at the end of the testament and on each separate page.”[56] Further, Louisiana Civil Code article 1573 states that any notarial testament that does not follow the formal requirements provided is absolutely null. In explaining general rules of statutory interpretation, the Court stated that shall is mandatory and the court must give effect to any clear and unambiguous language, the application of which would not lead to absurd consequences.[58] Therefore, the Court found that the Louisiana Civil Code article 1577 requirements were clear and unambiguous, expressly requiring a testator to “sign his name at the end and on each separate page” of the notarial will.

The Court explained that the holding in Liner is limited to defects in attestation clauses and is not applicable to the signature requirement.[60] The Court pointed to a footnote in Succession of Morgan where it clarified that Liner does not affect the formal requirements that notarial testaments must be in writing, dated, and signed by the decedent on every page and at the end, and that the notary and two witnesses must sign an attestation clause. Substantial compliance with the signature requirement is insufficient.[62] The signature requirement “reflects a policy decision by the legislature that the risk of mistake, imposition, undue influence, fraud, or deception is so significant that the absence of signatures constitutes a material deviation.”[63]

Instead, Article 1577 adopts only a substantial compliance standard for the attestation clause requirement.[64] If a notarial will contains an attestation clause that substantially complies with the requirements for attestation clauses but does not use the exact same language as the model clause, the notarial will meets the formal requirements, and a court will enforce it provided it strictly complies with all other formal requirements.[65] Thus, the Court invalidated the Frabbiele will because the testator merely initialed the first two pages.[66] Article 1577 requires a testator to “sign his name,” not initial the testament.[67]

While the majority found this to be a straightforward conclusion, this holding had many opponents. In his dissent, Justice Crain argued that there is no significant difference among “sign his name,” “signed,” or “signature”—all of which the legislature has utilized in various ways.[68] Justice Crain asserted that there is no indication that the legislature intended to create different signature requirements for these different parties.[70] Instead, an individual’s habitual use of a “written sign” is generally what confirms the signature’s authenticity, not whether the individual can legibly write his or her full name.[71] This raises the issue of individuals who customarily use their initials to sign their name.[72]

Further, Justice Crain questioned the need to debate strict-versus-substantial compliance within this case.[73] He noted a long line of consistent jurisprudence whereby the Louisiana Supreme Court recognized that substantial compliance with formal requirements was sufficient to uphold and enforce a will.[74] Justice Crain proposed an interpretation of Toney that does not reject the substantial compliance doctrine but rather emphasizes that material deviations invalidate a will, regardless of whether fraud is alleged. Despite three dissenters, the Court rejected the doctrine of substantial compliance as applied to any formal requirements other than the attestation clause and refused to validate the will.[76]

IV. Potential Issues

Despite a long line of conflicting jurisprudence, the Louisiana Supreme Court’s decision in Succession of Frabbiele seems to fully embrace the strict compliance approach. Moving forward, it appears that the Court is committed to upholding only those notarial testaments that strictly comply with the formal requirements the legislature prescribed. Louisiana estate planning attorneys should take note of this definitive ruling. No longer does the Court seem poised to uphold wills that contain any deviation from the formal requirements. This holding finally puts to rest an open question and clearly signals to individuals drafting wills that they must precisely follow the formal requirements the legislature prescribed.

Further, this decision raises the issue of what exactly constitutes a proper “name.” While the Court emphasized that initials are not sufficient, this leaves the open question of exactly what name must be signed on every page of a notarial testament. Must the name be the full legal name of the testator as reflected on his or her driver’s license? Perhaps the name can be a nickname by which the testator is generally known to others, as has been the common practice of courts and general understanding of scholars in olographic wills.[77] Alternatively, would a signature that included a first initial followed by a full last name suffice if the testator regularly signs his or her name in such a fashion? While each of these signatures would be sufficient in most other areas of the law, it is now unclear that they would be sufficient here, leaving some additional uncertainty.

Notwithstanding the clarity today, it is likely that courts will continue to invalidate many notarial wills despite the testator’s clear intent and lack of actual evidence indicating fraud, mistake, or undue influence. Indeed, many individuals who believe they have all their affairs in order as they prepare for the end of their lives will have their wills invalidated because of harmless errors for which they did not know to look. While the doctrine of strict compliance is laudable in theory, it will likely result in numerous inequities of which individuals who do not know the fine details of Louisiana succession law will be the victims.

Conclusion

The Frabbiele decision reinforces the strict compliance doctrine, providing some clarity in succession law but leaving unanswered questions. Estate planners and testators must now ensure that every will strictly complies with the formalities required by the Civil Code. By refusing to recognize substantial compliance outside of the attestation clause, the Court has prioritized formal requirements over testator intent. Moving forward, this decision highlights the importance of rigid standards in estate planning practices. However, future litigation may be necessary to resolve these remaining uncertainties, reinforcing the reality that succession law remains an evolving and complex field even if strict compliance advocates for the purported simple adherence to formal requirements.

[1] La. Civ. Code art. 1577 (2025).

[2] Id. art. 1576.

[3] Id. art. 1577. These requirements are reserved for a testator who knows how to read and sign his or her name and who has the physical ability to do so.

[4] Id.

[5] Id. art. 1577(2).

[6] Id.

[7] Id. art. 1573.

[8] See, e.g., In re Hendricks, 28 So. 3d 1057 (La. Ct. App. 2009); Succession of Hoyt, 303 So. 2d 189 (La. Ct. App. 1974); Land v. Succession of Newsom, 193 So. 2d 411 (La. Ct. App. 1966).

[9] See Succession of Toney, 226 So. 3d 397 (La. 2017).

[10] Ronald J. Scalise, Jr., Will Formalities in Louisiana: Yesterday, Today, and Tomorrow, 80 La. L. Rev. 1331, 1344 (2020).

[11] See Succession of Guezuraga, 512 So. 2d 366 (La. 1987).

[12] Scalise, supra note 10, at 1344.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id. at 1345.

[18] Id. (citing John H. Langbein, Substantial Compliance with the Wills Act, 88 Harv. L. Rev. 489, 513 (1975)).

[19] Id.

[20] Succession of Guezuraga, 512 So. 2d 366 (La. 1987). But see Scalise, supra note 10, at 1346.

[21] Id. at 367.

[22] Id. at 369.

[23] Id. at 368

[24] Id. (citing Loretta Garvey Whyte, Note, Donations—Imperfect Compliance with the Formal Requirements of the Statutory Will, 15 Loy. L. Rev. 362 (1968–69)).

[25] Id.

[26] See, e.g., In re Succession of Holbrook, 144 So. 3d 845 (La. 2014).

[27] Succession of Toney, 226 So. 3d 397 (La. 2017).

[28] Id. at 407.

[29] Id. at 399.

[30] Id. at 404–05.

[31] Id. at 407–08.

[32] Id. at 408.

[33] Succession of Liner, 320 So. 3d 1133, 1138 (La. 2021) (citing George Holmes, Testamentary Formalism in Louisiana: Curing Notarial Will Defects through a Likelihood of Fraud Analysis, 75 La. L. Rev. 511, 517 (2014)).

[34] Id.

[35] Id.

[36] Id. at 1139.

[37] Id. at 1138.

[38] See, e.g., Succession of McKlinski, 331 So. 3d 414 (La. Ct. App. 2021).

[39] Liner, 320 So. 3d at 1139.

[40] La. Civ. Code art. 1577 (2025).

[41] Succession of Guezuraga, 512 So. 2d 366, 369 (La. 1987).

[42] Scalise, supra note 10, at 1363–65.

[43] See id. at 1366.

[44] See Succession of McKlinski, 331 So. 3d 414 (La. Ct. App. 2021).

[45] Id. at 415.

[46] Id.

[47] Id.

[48] Id. at 416.

[49] Id. at 418.

[50] Id. at 420.

[51] Id. (citing Succession of Armstrong, 636 So. 2d 1109, 1111 (La. Ct. App. 1994)).

[52] Succession of Frabbiele, 397 So. 3d 391 (La. 2024).

[53] Id. at 393.

[54] Id. at 394.

[55] Id. at 395.

[56] Id. (citing La. Civ. Code art. 1577 (2025)).

[57] Id. at 396 (citing La. Civ. Code art. 1573 (2025)).

[58] Id. (quoting Boudreaux v. La. Dep’t of Pub. Safety & Corr., 101 So. 3d 22, 26 (La. 2012)).

[59] Id.

[60] Id. at 397.

[61] Id. (citing to Succession of Morgan, 370 So. 3d 399, 403 n.6 (La. 2023)). In Morgan, the Louisiana Supreme Court did not consider whether initials were sufficient to satisfy the signature requirement. Instead, the Morgan Court considered whether a notarial testament that contained no signatures from the testator, the notary, or witnesses was enforceable. See Morgan, 370 So. 3d 399. Instead, the testament in Morgan was merely a copy of a testament that could not otherwise be located. Id. at 401. The will’s proponents sought to probate this blank copy. Id. However, the Court emphasized the importance of the signatures and refused to enforce the copy. Id. at 403.

[62] Frabbiele, 397 So. 3d at 397.

[63] Id. at 398 (quoting Morgan, 370 So. 3d at 403).

[64] Id.

[65] Id.

[66] Id. at 398–99.

[67] Id. at 398.

[68] Id. at 401 (Crain, J., dissenting).

[69] Id.; La. Civ. Code art. 1577 (2025).

[70] Id.

[71] Id. at 401–02.

[72] Id. at 402.

[73] Id.

[74] Id. (citing Succession of Guezuraga, 512 So. 2d 366, 368 (La. 1987) (“[C]ourts liberally construe and apply the statute, maintaining the validity of the will if at all possible, as long as it is in substantial compliance with the statute.”); Succession of Porche, 288 So. 2d 27, 30 (La. 1973) (“[S]ubstantial compliance with the Wills Act is sufficient.”); Stephens v. Adger, 79 So. 2d 491, 495 (La. 1955) (“[S]ubstantial compliance with the formalities required in the execution of wills is sufficient to sustain its validity.”); Succession of Eubanks, 9 La. Ann. 147, 148 (1854) (“[T]here was a substantial compliance with the requirements of Article 1574 of the Code.”)).

[75] Id. at 403 n.3 (“Confusion arose more recently in the wake of Successions of Toney, where this court recognized that material deviations from the form requirements, even absent fraud, invalidate a will. The court rejected ‘any language in previous jurisprudence which suggested otherwise.’ I submit Successions of Toney did not reject the substantial compliance doctrine, but rather emphasized that material deviations invalidate a will, regardless of whether fraud is alleged. That is consistent with the substantial compliance doctrine. If a will contains material deviations from the form requirements, it does not substantially comply with those requirements. On the other hand, if the deviations are not material, the will likely substantially complies with the form requirements.” (citations omitted)).

[76] Id. at 398.

[77] See Scalise, supra note 10, at 1363–64.

By Philip Young

Editor’s Note: This article was originally published on November 8, 2024, at 10:32 a.m. It was temporarily removed on January 13, 2025 to address a potential inaccuracy regarding whether the Women’s Safety and Protections Act (WSPA) applies to Louisiana State University. After determining that the WSPA may not apply, the relevant sentence was revised to ensure accuracy. The updated article was reuploaded on January 17, 2025, at 1:12 p.m.

Introduction

Joseph Heller’s classic novel Catch-22 centers around Air Force pilots during World War II.[1] Throughout the book, various circumstances force the characters to make seemingly impossible choices.[2] The central dilemma the soldiers encounter is choosing between following orders and their instinctive desire for self-preservation.[3] In response to their well‑founded fears, pilots attempt to avoid future missions by claiming to be mentally insane.[4] To curtail cautious but otherwise capable soldiers from evading duty, the military implements the Catch-22 rule.[5] Although the rule is not revealed explicitly, Heller provides a descriptive definition, stating:

There was only one catch and that was Catch-22, which specified that a concern for one’s safety in the face of dangers that were real and immediate was the process of a rational mind. [If a pilot] was crazy [he] could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. [A pilot] would be crazy to fly more missions and sane if he didn’t, but if he were sane he had to fly them. If he flew them he was crazy and didn’t have to, but if he didn’t want to he was sane and had to.[6]

In popular culture, “a Catch-22” has become an eponym for similar situations. Merriam-Webster defines it as “a problematic situation for which the only solution is denied by a circumstance inherent in the problem or by a rule.”^[7] While these circumstances are not uncommon, the Louisiana legislature recently placed public school administrators in a similar no-win situation.[8]

In recent years, LGBTQ+ rights have been the subject of intense legal and political discussions.[9] On November 18, 2003, Massachusetts became the first state to legalize same-sex marriage.[10] This decision acted as a key development in the fight for LGBTQ+ rights and contributed to an already shifting cultural momentum.[11] This momentum reached a crescendo in the United States Supreme Court’s 2015 landmark decision Obergefell v. Hodges, which legalized same-sex marriage on a federal level.[12]

In the same year, the Equal Employment Opportunity Commission (EEOC) issued a seemingly prophetic decision.[13] In Lusardi v. Department of the Army, the United States Army hired a transgender woman as a civilian employee.[14] The employee agreed to use a single‑occupant, gender‑neutral bathroom.[15] On multiple occasions, however, the single-occupant restroom was inaccessible.[16] As a result, the employee used the common female restroom.[17] After doing so, she was confronted by a supervisor who told her “that she was making people uncomfortable, and that she had to use the executive restroom until she could show proof of having undergone the ‘final surgery.”’[18] This ultimately caused the employee to file a complaint with the EEOC.[19] In turn, the EEOC determined that an employer may not deny a transgender employee access to a restroom that comports with the employee’s gender identity.[20]

Five years after Obergefell and Lusardi, the Supreme Court extended protections to other members of the LGBTQ+ community.[21] In Bostock v. Clayton County, the Court held that an employer who renders a negative employment consequence on a transgender employee because of his or her transgender status discriminates on the basis of sex.[22] Under the Civil Rights Act of 1964, this discrimination is unlawful.[23]

In stark contrast to the federal government’s unabashed social progressivism, Louisiana’s legislature enacted competing laws in its 2024 session.[24] On June 3, 2024, Louisiana Governor Jeff Landry signed House Bill 608, the Women’s Safety and Protection Act (WSPA).[25] The WSPA’s opening statute states that “no governmental agency . . . shall prohibit distinctions between the sexes with respect to . . . accommodation[s] where biology, safety, or privacy are implicated and . . . are substantially related to the important government interest of protecting the health, safety, and privacy of individuals.”[26] Further, the WSPA states that it does not prohibit institutions from establishing single‑occupant restrooms that are not designated by sex.[27] Two statutes later, however, the WSPA states:

A. A public school shall designate each multi-occupancy restroom or changing room for the exclusive use of either females, males, or members of the same family.

B. (1) A restroom or changing room within a public school that is designated for males or females shall be used only by members of that same sex. No individual shall enter a restroom or changing room that is designated for one sex unless the individual is a member of that sex.
(2) The public school shall take reasonable steps to provide individuals with privacy in restrooms and changing rooms from members of the opposite sex.[28]

The WSPA’s mandatory language and insistence on segregating restrooms based on users’ biology conflicts with the federal government’s articulated policies.[29] As a result, it places Louisiana public school administrators in an impossible situation.

I. Federal Policy

Throughout recent years, LGBTQ+ activism has steadily expanded its influence in the cultural mainstream. During this time, activists have routinely asked the government to establish or recognize LGBTQ+ individuals’ rights.[30] Although the government’s response has varied among jurisdictions, it has regularly extended protections to LGBTQ+ individuals at the federal level.[31]

A. Before Bostock: Split Circuits

In 2015, the EEOC decided that a federal agency committed sex discrimination by denying a transgender employee equal access to a common restroom corresponding to her gender identity. [32] In Lusardi, the United States Army hired the complainant, a transgender woman, as a civilian employee. [33] In a meeting with the complainant and two supervising officers, the three agreed that she would use a single‑occupant restroom until the complainant had undergone an “undefined surgery.”[34] However, on three occasions, the complainant used the common female restroom.[35] After one such instance, an officer confronted her, told her that she was making people uncomfortable, and instructed her to use the single‑occupant restroom until showing proof of having undergone the “final surgery.”[36] The complainant subsequently filed a charge with the EEOC.[37] She argued that her employer violated Title VII of the Civil Rights Act of 1964 (Title VII) by discriminating against her on the basis of sex.[38] The Army contended that no law required it to allow transgender employees to use restrooms consistent with their gender identity.[39] Further, the Army asserted that it lacked clarity on whether the complainant’s “inability to use a restroom with equivalent amenities constitute[d] an adverse action.”[40] Ultimately, the EEOC determined that the Army subjected the complainant to disparate treatment on the basis of sex and created a hostile work environment.[41] As a result, the EEOC held that the Army’s actions violated Title VII.[42]

In the same year that the Supreme Court decided Lusardi, both the Department of Labor (DOL) and Occupational Safety and Health Administration (OSHA) issued guidance regarding restroom access for transgender workers.[43] In its guidance, the DOL incorporated the Office of Personnel Management’s (OPM) policy, which states that federal agencies should allow an employee “who has begun living and working full-time in the gender consistent with the employee’s gender identity . . . to use the restrooms . . . consistent [with the same].”[44] However, the DOL did not comment on private employers’ duties.

Similarly, OSHA’s guidance also states that employers should allow transgender employees to use restrooms that correspond to their gender identity.[45] Further, it states that employers should provide additional discretionary restroom options for transgender employees, including gender‑neutral, single‑occupant, and multiple‑occupant restrooms.[46] Although no employer can require an employee to use a segregated facility because of their gender identity or transgender status under this guidance, employees may freely choose to do so.[47] The guidance also notes that employers should not ask employees to provide any medical or legal documentation of their gender identity to have access to these facilities.[48] While OSHA’s best practices seem to increase employers’ duties, it also expressly states that it creates no new legal obligations for employers.[49]

Conversely, in 2019, the United States Fifth Circuit Court of Appeal reiterated that Title VII does not prohibit discrimination on the basis of transgender status.[50] In Wittmer v. Phillips 66 Co., the Phillips 66 Company (Phillips 66) extended an offer of employment to a transgender woman but later retracted it because of discrepancies in her background check.[51] The applicant subsequently filed suit and argued that Phillips 66 discriminated against her on the basis of her transgender status.[52] In its analysis, the Fifth Circuit recognized that three of its sister circuits had recently determined that Title VII prohibits transgender discrimination.[53] Instead of adopting this stance, however, the court stated that its own precedent did not prohibit transgender discrimination.[54] Consequently, employers could discriminate based on transgender status within the Fifth Circuit.[55]

B. After Bostock: The Circuit Split Settles

An employer who discriminates against an employee for traits or actions that it would not have questioned if the employee was a different sex violates Title VII.[56] In Bostock, a biologically male employee with gender dysphoria informed her employer that she planned to live and work as a female.[57] As a result, her employer, R.G. & G.R. Harris Funeral Homes, fired her.^[58] She subsequently filed suit alleging Title VII violations.[59] After carefully examining Title VII’s words and intent and considering relevant precedent, the Court ultimately stated that it is “impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”[60] The Court held that “an employer who intentionally penalizes an employee for being homosexual or transgender . . . violates Title VII.”[61] Therefore, under Bostock, employers may not treat transgender employees differently based on their sexual identity.[62] As a result, the Supreme Court’s decision superseded previous case law that held the contrary, including Wittmer.

II. The WSPA and Public School Employees

In Bostock, the Supreme Court made it clear that employers who discriminate against employees based on their transgender status violate the Civil Rights Act of 1964.[63] Federal employment discrimination policy mandates that employers grant transgender employees access to restrooms that correspond with their gender identity.[64] Certain employers may find it difficult to comply, however, given Louisiana’s recent legislative changes.[65]

The WSPA, passed in the 2024 legislative session, states that Louisiana public schools “shall designate each multi‑occupancy restroom or changing room for the exclusive use of either females, males, or members of the same family.”[66] In passing the WSPA, the state legislature asserted that it proffered the bill for women’s safety and well‑being.[67] By prohibiting men in women’s public school restrooms, the state legislature ostensibly contends that women are safer.[68] Louisiana is home to approximately 1,300 public schools.[69] Since the new law applies to all Louisiana public schools, every Louisiana public school, from John F. Kennedy Elementary School, with less than 100 students, to Dutchtown High School, which enrolls over 2,000 students, must comply.[70] When considered from an employment perspective, however, the WSPA may force some schools into unlawful action.[71]

When a transgender individual applies for employment with a Louisiana public school, Bostock indicates that any negative employment action taken against the employee on the basis of his or her transgender status violates Title VII.[72] Examples of negative employment actions include, among others, the school’s failure to hire the employee, the employee’s termination, or the school’s refusal to provide access to restroom facilities that correspond with the employee’s sexual identity.[73] While schools can likely implement customary and familiar safeguards against transgender discrimination in most circumstances, given the recent legislative changes, restroom access could present a difficult situation for some Louisiana public schools.

It is impossible to consider the various restroom facilities at every Louisiana public school. At smaller schools, there may only be single‑occupant restrooms. Others may have multiple‑occupant restrooms for the students and single‑occupant restrooms for the faculty and staff. Still others may have only multiple‑occupant restrooms that everyone uses.

The WSPA requires schools to designate these multiple-occupant restrooms for use by individuals of one sex and “[n]o individual shall enter a restroom . . . unless the individual is a member of that sex.”[74] The legislature’s use of the mandatory verb “shall” indicates that compliance is not optional.[75] Further, the statute requires schools to segregate users according to their sex, not gender.[76] Although not expressly stated, the statute seemingly acknowledges a difference between gender and sex.[77] The statute would have permitted transgender individuals to use the restrooms that correspond to their gender identity if the legislature required restrooms to be designated according to gender. In this case, however, the statute would arguably have little to no effect. Instead, the WSPA mandates schools to designate restrooms according to sex.[78] In doing so, the legislature refers to users’ biological and anatomical makeup.[79] As a result, the WSPA requires public schools to deny restroom access to anyone who does not belong to the designated “sex,” placing public schools with transgender employees in a difficult situation.[80]

On the one hand, Louisiana schools may choose to abide by the WSPA. In doing so, the schools would designate multiple‑occupancy restrooms for use by either males or females and deny access to individuals of the other sex.[81] Since transgender individuals’ biological identity and gender identity do not match, the statute would require Louisiana public schools to deny a transgender employee access to the restroom that comports with his or her gender identity.[82] Not only would this directly contradict federal policy, but it would violate Title VII.[83] As a result, employees could bring an EEOC complaint or employment discrimination claim against the school.[84]

On the other hand, public schools may choose to comply with federal law and permit a transgender employee to use the multiple‑occupancy restroom that corresponds to his or her gender identity.[85] This action, however, would conflict with the WSPA because it specifically mandates that public schools segregate users based on biological sex.[86] Since the WSPA states that an individual may bring a claim under the statute and receive injunctive relief, actual damages, and attorney’s fees, public schools would likely face similar exposure to litigation under these circumstances.

Conclusion

In recent years, the LGBTQ+ community has successfully garnered increased protections at the federal level. Federal policy clearly dictates that transgender individuals should be permitted to use a restroom that comports with their gender identity. At the same time, the WSPA aims to exclude biological men from women’s restrooms to benefit women’s health and safety. After signing the WSPA, Louisiana’s Governor Jeff Landry commented:

The attack on women that we have seen taking place across our country has no place in the state of Louisiana. I was proud to sign House Bill 608 which protects women’s safety and reinforces the very definition of what it means to be a woman. Enough is enough. Louisiana will not allow biological men to take advantage of opportunities for women. We want women across the country to know that your privacy, safety, and opportunities are valued and will always be protected in Louisiana.^[87]

While the governor’s comments may be polarizing, the intersection of transgender and women’s rights highlights an intriguing legal and political crossroads. In any case, by passing the WSPA, Louisiana’s state government may have made it impossible for some public schools to comply with both federal and state law. As a result, some schools may face increased litigation regardless of their path forward.

 

[1] Joseph Heller, Catch-22 (1961).

[2] Id.

[3] Id.

[4] Id.

[5] Id. at 56.

[6] Id.

[7] Catch-22, Merriam-Webster (11th ed. 2024).

[8] Compare Lusardi, EEOC Decision No. 0120133395, 2015 WL 1607756 (Apr. 1, 2015), and Bostock v. Clayton Cnty., 590 U.S. 644, 651–52 (2020), with La. Rev. Stat. § 9:62.

[9] See generally Geoff Mulvihill, Things to Know about Developments Impacting LGBTQ+ Rights Across the US, APNews (Mar. 15, 2024, 2:21 PM), https://apnews.com/article/lgbtq-rights-dont-say-gay-licenses-d0bf9d2f314ec6f28f2189795ea2d56c [https://perma.cc/LKD7-PMN2].

[10] See Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 969 (2003); Morning Edition, 20 Years Ago Massachusetts Became the First State to Allow Same-Sex Marriage, NPR, at 00:01 (May 17, 2024), https://www-s4.npr.org/2024/05/17/1252012776/20-years-ago-massachusetts-became-the-first-state-to-allow-same-sex-marriage[https://perma.cc/TW72-PEUR].

[11] See generally Yvonne Abraham, Gays Seek Right to Marry Mass. Lawsuit Goes Beyond Civil Unions, Bos. Globe (Apr. 12, 2001), https://web.archive.org/web/20160213222452/https://www.highbeam.com/doc/1P2-8646465.html [https://perma.cc/3UYQ-45Y8].

[12] Obergefell v. Hodges, 576 U.S. 644 (2015).

[13] Lusardi, 2015 WL 1607756.

[14] Id. at *1.

[15] Id. at *2.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id. at *18.

[21] See Bostock v. Clayton Cnty., 590 U.S. 644, 644 (2020).

[22] Id. at 683.

[23] Id. at 651–52.

[24] La. Rev. Stat. § 9:60–63.

[25] Domenic Purdy, Landry Signs Law Prohibiting Transgender People from Facilities that Align with Chosen Gender, WBRZ (June 5, 2024, 2:53 PM), https://www.wbrz.com/news/landry-signs-law-prohibiting-transgender-people-from-facilities-that-align-with-chosen-gender/ [https://perma.cc/Y4WE-25HS].

[26] La. Rev. Stat. § 9:60.

[27] Id.

[28] Id. § 9:62.

[29] Compare Lusardi, EEOC Decision No. 0120133395, 2015 WL 1607756 (Apr. 1, 2015), with Bostock v. Clayton Cnty., 590 U.S. 644 (2020), and Dep’t of Lab., DOL Policies on Gender Identity: Rights and Responsibilities (2015), https://www.dol.gov/sites/dolgov/files/OASAM/legacy/files/20150422GenderIdentity.pdf [https://perma.cc/W5L5-R73X].

[30] See Bostock, 590 U.S. at 654.

[31] See id. at 649–50.

[32] Lusardi, 2015 WL 1607756. The EEOC is a federal agency that enforces federal employment discrimination laws. Overview, U.S. Equal Emp. Opportunity Comm’n, https://www.eeoc.gov/overview[https://perma.cc/82FL-EFDZ]. Although it is multi-faceted, the agency investigates employment discrimination complaints and renders administrative law decisions. Id. These decisions are persuasive authority to the judiciary. The EEOC may also choose to file suit on an employee’s behalf and represent the employee throughout the claim. Id.

[33] Lusardi, 2015 WL 1607756, at *1.

[34] Id. at *2.

[35] Id.

[36] Id.

[37] Id. at *1.

[38] Id. at *5.

[39] Id.

[40] Id.

[41] Id. at *13.

[42] Id. at *10.

[43]Dep’t of Lab., DOL Policies on Gender Identity: Rights and Responsibilities (2015), https://www.dol.gov/sites/dolgov/files/OASAM/legacy/files/20150422GenderIdentity.pdf [hereinafter Policies on Gender Identity] [https://perma.cc/W5L5-R73X]; Occupational Safety & Health Admin., A Guide to Restroom Access for Transgender Workers (2015), https://www.osha.gov/sites/default/files/publications/OSHA3795.pdf [hereinafter A Guide to Restroom Access] [https://perma.cc/9W5K-KHWC]. The DOL supports workers by providing job training, wage standards, unemployment benefits, and workplace rights. Frequently Asked Questions: What Does the Department of Labor Do?, Dep’t of Lab., https://webapps.dol.gov/dolfaq/go-dol-faq.asp?faqid=478&faqsub=General+Information&faqtop=About+DOL&topicid=9[https://perma.cc/437H-Y8YX]. OSHA, a part of the DOL, focuses on setting standards and enforcing regulations to ensure workplace safety and health. About OSHA, Occupational Safety & Health Admin., https://www.osha.gov/aboutosha[https://perma.cc/N3U6-AAHU].

[44] Policies on Gender Identity, supra note 43.

[45] A Guide to Restroom Access, supra note 43.

[46] Id. at 2.

[47] Id.

[48] Id.

[49] Id. at 4.

[50] Wittmer v. Phillips 66 Co., 915 F.3d 328, 330 (5th Cir. 2019).

[51] Id. at 331.

[52] Id.

[53] Id. at 330 (first citing Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc); then citing EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018); and then citing Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc)).

[54] Id.

[55] Id.

[56] Bostock v. Clayton Cnty., 590 U.S. 644, 651–52 (2020).

[57] Id. at 653–54.

[58] Id. at 654.

[59] See id.

[60] Id. at 658, 660, 663–66.

[61] Id. at 653. In Bostock, the Court defined discrimination by example, stating: “[A]n employer who intentionally treats a person worse because of sex—such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discriminates against that person in violation of Title VII.” Id. at 658.

[62] Id.

[63] See id. at 658, 660, 663–66.

[64] See Lusardi, EEOC Decision No. 0120133395, 2015 WL 1607756 (Apr. 1, 2015).

[65] See La. Rev. Stat. § 9:62.

[66] Id.

[67] Press Release, Office of the Governor, Louisiana, Governor Landry Signs Women’s Safety and Protection Act Into Law (June 6, 2024), https://gov.louisiana.gov/news/4536 [https://perma.cc/5FFG-7KBV].

[68] Id.

[69] Public Schools, La. Dep’t of Educ., https://www.louisianabelieves.com/schools/public-schools [https://perma.cc/XQC9-Z992].

[70] La. Dep’t of Educ., Multiple Statistics By School System for Elementary/Secondary Public Students (2024), (available at https://louisianabelieves.com/resources/library/student-attributes [https://perma.cc/7PRT-PYMC]).

[71] See La. Rev. Stat. § 9:62(B)(1).

[72] See Bostock v. Clayton Cnty., 590 U.S. 644, 658, 660, 663–66 (2020).

[73] See id.; Lusardi, EEOC Decision No. 0120133395, 2015 WL 1607756 (Apr. 1, 2015).

[74] La. Rev. Stat. § 9:62(B)(1).

[75] Id.; See id. § 1:3. (“The word ‘shall’ is mandatory, and the word ‘may’ is permissive.”).

[76] Id.  § 9:62(B)(1).

[77] See id.

[78] Id.

[79] Press Release, Office of the Governor, Louisiana, Governor Landry Signs Women’s Safety and Protection Act Into Law (June 6, 2024), https://gov.louisiana.gov/news/4536 [https://perma.cc/5FFG-7KBV].

[80] Compare La. Rev. Stat. § 9:62(B)(1), with Lusardi, EEOC Decision No. 0120133395, 2015 WL 1607756 (Apr. 1, 2015).

[81] La. Rev. Stat. § 9:62(B)(1).

[82] See generally Jenny Graves, How Genes and Evolution Shape Gender – and Transgender – Identity, The Conversation (Jan. 23, 2019, 2:05 PM), https://theconversation.com/how-genes-and-evolution-shape-gender-and-transgender-identity-108911?form=MG0AV3 [https://perma.cc/V97R-EYSR].

[83] See Lusardi, 2015 WL 1607756; Bostock v. Clayton Cnty., 590 U.S. 644, 644 (2020); Policies on Gender Identity, supra note 43.

[84] See id.

[85] See id.

[86] La. Rev. Stat. 9:62(B)(1).

[87] Domenic Purdy, Landry Signs Law Prohibiting Transgender People from Facilities that Align with Chosen Gender, WBRZ (June 5, 2024, 2:53 PM), https://www.wbrz.com/news/landry-signs-law-prohibiting-transgender-people-from-facilities-that-align-with-chosen-gender/ [https://perma.cc/Y4WE-25HS].