PUBLICATIONS
New! Gray Proctor, “Twelve Angry Taxpayers: Why the Constitution Might Guarantee a Jury Trial for Accuracy and Fraud Penalties in Tax Cases After SEC v. Jarkesy,” The Florida Bar Journal, Vol. 99, No. 3 (May/June 2025). Cited by two amicus parties – the Cato Institute and the Americans for Prosperity Foundation – at the cert stage in Hirsch v. United States Tax Court. The government has been ordered to respond.
SEC v. Jarkesy, 603 U.S. 109 (2024), is one of three Supreme Court decisions from the summer of 2024 that have reshaped the landscape of administrative law. Jarkesy holds that when a penalty is the kind of action that courts of law would have heard at the founding, the Seventh Amendment and Article III require the government to collect it by filing suit in federal court before a jury — not by administrative fiat. For more than a century, the IRS has assessed and collected tax penalties as additions to the underlying tax, with no jury and no Article III judge. This article traces the history of tax penalty collections from the founding era through the Civil War and demonstrates that, as a matter of historical fact, tax penalties were collected by suit at common law with a right to a jury trial. If Jarkesy is to be taken seriously, this history imperils the current status quo of administrative tax penalty assessment.
We have also worked together at the intersection of the Eighth Amendment and promoter penalties.
Gray Proctor, “Summary Judgment, Scintillas, and Celotex: Reviewing the Federal Cases the Supreme Court is Considering Adopting in Wilsonart, LLC v. Lopez,” Journal of the Florida Justice Association, May/June 2020.
Gray Proctor, “Old Rule, Partially Retroactive, and No Remedy: Why Hurst Won’t Help Many on Florida’s Death Row,” 28 FED. SENT. R. 5 (2016).
Gray Proctor and Nancy King, “Post-Padilla: Padilla’s Puzzles for Review in State and Federal Courts,” 23 FED. SENT. R. 239 (2010).
Gray Proctor, “Ngo Excuses: Proving, Rebutting, and Excusing Exhaustion in Prisoner Suits after Woodford v. Ngo and Jones v. Bock,” 31 HAMLINE L. REV. 471 (2008).
Gray Proctor, “The New Role of Federal Habeas Courts in Guaranteeing the Right to Effective Assistance of Counsel,” Florida Bar Journal June 2015.
Gray Proctor, “What State Criminal Practitioners Should Know About Federal Habeas Corpus,” The Record (Journal of the Appellate Practice Section Summer 2014).
Gray Proctor, “Hurst v. Florida: Retroactivity Doctrine Allows Florida to Ignore the Constitution,” Bloomberg BNA Criminal Law Reporter (February 10, 2016)
Gray Proctor, “Retroactivity and the Uncertain Application of Johnson v. United States: Is the Rule ‘Constitutional’ on Post-Conviction Review?” Bloomberg BNA Criminal Law Reporter (July 1, 2015).
Gray Proctor, “Whiteside v. United States: Using 28 U.S.C. § 2255 to Correct Serious Guidelines Errors Based on New Law,” BNA Bloomberg Criminal Law Reporter (April 30, 2014).
Gray Proctor, “Christmas Comes Early in the Eleventh Circuit: Using Bryant and 28 U.S.C. § 2241 When Section 2255 is Inadequate to Challenge Illegally Enhanced Sentences,” BNA Bloomberg Criminal Law Reporter (January 22, 2014).
Gray Proctor, “Attacking Aggravating Prior Convictions in Federal Habeas: Using Lackawanna and Daniels for . . . Practically Anything?,” BNA Bloomberg Criminal Law Reporter (December 4, 2013).
Gray Proctor, “The Supreme Court’s Ruling in Chaidez v. United States: Averting a Flood of Padilla Litigation by Former Prisoners,” BNA Bloomberg Criminal Law Reporter (May 22, 2013).
Gray Proctor, “Habeas Review under 28 U.S.C. § 2254 after Martinez v. Ryan: Federalization and Forum Shopping for Ineffective Assistance of Counsel Claims,” BNA Bloomberg Criminal Law Reporter (December 5, 2012).
Speaker and Panelist, “The ‘Solo Practitioner:’ Pro Se Litigants and Their Obstacles to Justice,” Fordham Law School, January 25, 2011.
“If your attorney posts to his blog and puts it on his resume as a ‘publication’ – look out.”
— GRAY R. PROCTOR, ESQ.