Digital Commons Network^™

Digital Barter Taxes: A Legal Defense, Young Ran (Christine) Kim, Darien Shanske

Faculty Articles

This short essay, aimed at state legislators, defends digital barter taxes from the most common legal objections.

Digital Barter Taxes Are Good Tax Policy, Young Ran (Christine) Kim, Darien Shanske

Faculty Articles

This short essay, aimed at state legislators, argues that digital barter taxes are good tax policy.

The Myth Of Slavery Abolition, Jocelyn Getgen Kestenbaum

Faculty Articles

In many countries today, slavery and the slave trade continue with impunity. International human rights law prohibits both abuses, but states are rarely held accountable and people who are enslaved or slave traded rarely receive redress. This Article offers a novel account of why international human rights law advocacy neglects slavery and the slave trade. Specifically, this Article demonstrates that the abolition of the Transatlantic and East African slave trades was achieved through a legal framework that marginalized the human rights of enslaved persons while consolidating empire. In the wake of World War II, prohibitions on slavery and the slave …

Redistributing Justice, Benjamin Levin, Kate Levine

Faculty Articles

This Essay surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system. Despite progressives’ increasingly prevalent critiques of criminal law, there is hardly a consensus on the left in opposition to the carceral state. Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas— often areas in which defendants are imagined as powerful and victims as particularly vulnerable.

In this Essay, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment—the hope that the criminal system …

A New Framework For Condominium Structural Safety Reforms, Stewart E. Sterk, Reid K. Weisbord

Faculty Articles

Forty years after the widespread popularization of residential condominium ownership in the United States, millions of Americans now live in aging, densely occupied structures that are subject to little (if any) ongoing regulation of structural safety. Most structural safety requirements are imposed and enforced at the time of initial construction, thus relegating questions of how to maintain a building’s structural integrity to individual owners and the mechanisms of condominium governance. However, reliance on voluntary action by unit owners too often falters because the divided ownership characteristic of the condominium form deters associations from investing in preventive maintenance. Postponement of critical …

Administrative Reliance, Haiyun Damon-Feng

Faculty Articles

Presidential regime change and the federal policy shifts that accompany it raise significant questions concerning continuity, stability, and governance in the administrative state. Presidential policymaking through the administrative state may generate serious reliance interests recognized under administrative law (what this Article calls “administrative reliance”), which agencies must consider prior to enacting policy change. Administrative reliance has developed into a robust form of judicial review over agency action. Administrative reliance has been invoked in highly politicized contexts, such as immigration law, to challenge a sitting administration’s termination of a prior administration’s policies. Despite its powerful and consequential effects, the doctrine of …

Enhancing Public Access To Agency Law, Bernard Bell, Cary Coglianese, Michael Herz, Margaret Kwoka, Orly Lobel

Faculty Articles

A just, democratic society governed by the rule of law requires that the law be available, not hidden. This principle extends to legal materials produced by administrative agencies, all of which should be made widely accessible to the public. Federal agencies in the United States do disclose online many legal documents—sometimes voluntarily, sometimes in compliance with statutory requirements. But the scope and consistency of these disclosures leaves considerable room for improvement. After conducting a year-long study for the Administrative Conference of the United States, we identified seventeen possible statutory amendments that would improve proactive online disclosure of agency legal materials. …

Legislating Courts, Michael C. Pollack

Faculty Articles

No abstract provided.

Taxing The Metaverse, Young Ran (Christine) Kim

Faculty Articles

The buzz surrounding the Metaverse has been growing steadily for the past couple of years, but the tax implications of this novel ecosystem remain fuzzy to most tax scholars. Such uncertainty is concerning, given the potential and momentum of this emerging technology. Although the Metaverse evolved from online video games focused only on user consumption, it now allows users to produce income and accumulate wealth entirely within the Metaverse. Current law seems to defer taxation of such until a realization or cash-out event. This Article challenges this approach and offers novel arguments justifying Metaverse taxation.

Because economic activity within the …

Collusive Foreclosure Sales: The Forgotten Legacy Of Northern Pacific V. Boyd, David G. Carlson

Faculty Articles

In BFP v. Resolution Trust Corp. (1994), the Supreme Court ruled that mortgage foreclosures could not be fraudulent conveyances – unless the foreclosure was “collusive.” It gave no clue what made mortgage foreclosures collusive. But in 1913, the Supreme Court defined collusive mortgage foreclosures in a famous railroad receivership case – Northern Pacific R. Co. v. Boyd. Boyd is usually thought to be the origin of the absolute priority rule in bankruptcy reorganization. Actually, it was a mortgage foreclosure sale. What made the sale collusive is that some of the shareholders of the defaulting railroad were also the shareholders of …

Downstreaming, Rachel Landy

Faculty Articles

Spotify and its competitors all offer the same product at the same price. Why? Scholars have argued that relationships can be designed in a way that naturally promotes innovation. By “braiding” certain formal contracting practices with informal enforcement norms, parties develop a frame-work that supports trust and positive, long-term collaboration. This Article takes on this consensus and shows that not all braiding is good. Using the multibillion-dollar subscription music streaming business as an illustration, it demonstrates just how industry forces can, and do, overcome braiding’s positive slant. In that industry, the major record labels (Universal, Warner, and Sony) weaponize braiding …

The History Of -Eer In English: Suffix Competition Or Symbiosis?, Zachary Dukic, Chris C. Palmer

Faculty Articles

Ecological models of competition have provided great explanatory power regarding synonymy in derivational morphology. Competition models of this type have certainly shown their utility, as they have demonstrated, among other things, the relevance of frequency measures, productivity, compositionality and analyzability when comparing the development of morphological constructions. There has been less consideration of alternative models that could be used to describe the historical co-development of suffixes that produce words with sometimes similar forms or meanings but are not inevitably or solely in competition. The symbiotic model proposed in this article may help answer larger questions in linguistics, such as how …

The Insidious War Powers Status Quo, Rebecca Ingber

Faculty Articles

This Essay highlights two features of modern war powers that hide from public view decisions that take the country to war: the executive branch’s exploitation of interpretive ambiguity to defend unilateral presidential authority, and its dispersal of the power to use force to the outer limbs of the bureaucracy.

Volunteerism During Covid-19: Sport Management Students’ Career Interests Against Public Health Risks, Kyu-Soo Chung, Jennifer Willet, Chris Green, Nari Shin

Faculty Articles

Employing the theory of planned behavior, this study aimed to identify how sport management students’ intentions to volunteer for a sporting event were affected by their COVID-19 preventive health factors and social consciousness. From eight U.S. universities, 415 sport management students responded to a self-administered online survey. Collected data were analyzed via hierarchical regression modeling. While the students’ health literacy and susceptibility affected their intentions positively, their social consciousness played a crucial role in producing low intentions to volunteer for a sporting event. Sport management educators should include more hands-on activities in the curriculum and collaborate with local sport agencies …

Sidewalk Government, Michael C. Pollack

Faculty Articles

This Article is about one of the most used, least studied spaces in the country: the sidewalk.

It is easy to think of sidewalks simply as spaces for pedestrians, and that is exactly how most scholars, policymakers, and laws treat them. But this view is fundamentally mistaken. In big cities and small towns, sidewalks are also where we gather, demonstrate, dine, exercise, rest, and shop. They are host to commerce and infrastructure. They are spaces of public access and sources of private obligation. And in all of these things, sidewalks are sites of under-appreciated conflict. The centrality of sidewalks in …

Taxation’S Limits, Luís C. Calderón Gómez

Faculty Articles

Countless pages have been devoted to the question of why should everyone pay tax, yet its obverse has gone largely unnoticed: why should some people and organizations not pay tax? Our tax system exempts from ordinary income taxation a wide and diverse array of people and organizations engaged in significant economic activity—from parents providing childcare services for their family, to consular activities and charities operating animal shelters—seemingly without a convincing explanation. Perhaps as a result of the dizzying diversity of activities that have been exempted from tax, scholars and policymakers have eluded comprehensively or coherently justifying our exemption regimes.

This …

Cross-Sectional And Descriptive Study On The Challenges And Awareness Of Hispanic Parents Regarding Their Adolescents’ Mental Health During The Covid-19 Pandemic, Jihye Kim, Robin Scott

Faculty Articles

Research has shown that during the COVID-19 pandemic, approximately 20% of children and adolescents in the United States experienced mental health issues that became a significant social concern. However, recent studies have demonstrated that the majority of adolescents maintain positive emotions despite the crisis. This cross-sectional and descriptive study delves into the emotional states of adolescents during the pandemic, considering the viewpoints of both adolescents and their parents, with a specific focus on Hispanic adolescents. Survey results revealed that most adolescents reported positive and happy moods. However, a percentage of adolescents experienced worry, significant changes in feelings, and loneliness as …

The Worst Choice For School Choice: Tuition Tax Credits Are A Bad Idea And Direct Funding Is Wiser, Michael J. Broyde, Anna G. Gabianelli

Faculty Articles

School choice is on the rise, and states use various mechanisms to implement it. One prevalent mechanism is also a uniquely problematic one: the tax credit. Tax credits are deficient at equitably distributing a benefit like school choice; they are costly, and they invite fraud. Instead of using tax credits, states opting for school choice programs should use direct funding. Direct funding will more efficiently achieve the goals of school choice because it can be regulated like any other government benefit, even if it ends up subsidizing religious private schools.

Tax credits’ prevalence is not inexplicable, of course. It is …

40 More Writing Hacks For Appellate Attorneys, Brian C. Potts

Faculty Articles

Script for Trailer: “40 More Writing Hacks for Appellate Attorneys”

Fade in on aerial view of Washington, D.C.

Zoom in on Supreme Court Building. Chopper sounds. Enter helicopter fleet flying by.

Cut to Chief Justice John G. Roberts, Jr., sitting at his desk, reading. He rubs his forehead. Tired. Anxious. Distraught.

Chief: “What a mess! This brief could have been 10 pages shorter!”

Phone rings. Chief answers on speaker.

Law clerk’s voice through phone: “Chief, turn to Appellee’s brief. You’ve got to see this!”

Chief picks up different brief. Flips it open. Zoom in on face. Eyes widen. Jaw drops. …

The Past As A Colonialist Resource, Deepa Das Acevedo

Faculty Articles

Originalism’s critics have failed to block its rise. For many jurists and legal scholars, the question is no longer whether to espouse originalism but how to espouse it. This Article argues that critics have ceded too much ground by focusing on discrediting originalism as either bad history or shoddy linguistics. To disrupt the cycle of endless “methodological” refinements and effectively address originalism’s continued popularity, critics must do two things: identify a better disciplinary analogue for originalist interpretation and advance an argument that moves beyond methods.

Anthropology can assist with both tasks. Both anthropological analysis and originalist interpretation are premised on …

Rethinking Eisner V. Macomber, And The Future Of Structural Tax Reform, Alex Zhang

Faculty Articles

In June 2023, the Supreme Court granted the petition for a writ of certiorari in Moore v. United States, ostensibly a challenge to an obscure provision of the 2017 tax legislation. Moore’s real target is the constitutionality of federal wealth and accrual taxation, which policymakers have proposed to combat record inequality and raise revenue for social-welfare reform. At the center of the doctrinal dispute in Moore is a century-old case, Eisner v. Macomber, on which the Moore petitioners and other commentators have relied to argue that Congress has no power to tax wealth or unrealized gains—e.g., appreciation …

The Unconstitutional Conditions Vacuum In Criminal Procedure, Kay L. Levine, Jonathan R. Nash, Robert A. Schapiro

Faculty Articles

For more than a century, the Supreme Court has applied the unconstitutional conditions doctrine in many contexts, scrutinizing government efforts to condition the tradeoff of rights for benefits with regard to speech, funding, and takings, among others. The Court has declined, however, to invoke the doctrine in the area of criminal procedure, where people accused of crime are often asked to—and often do—surrender their constitutional rights under the Fourth, Fifth, and Sixth Amendments in return for some benefit. Despite its insistence that the unconstitutional conditions doctrine applies broadly across the Bill of Rights, the Court’s jurisprudence demonstrates that the doctrine …

Institutional Design And The Predictability Of Judicial Interruptions At Oral Argument, Tonja Jacobi, Patrick Leslie, Zoë Robinson

Faculty Articles

Examining oral argument in the Australian High Court and comparing to the U.S. Supreme Court, this article shows that institutional design drives judicial interruptive behavior. Many of the same individual- and case-level factors predict oral argument behavior. Notably, despite orthodoxy of the High Court as “apolitical,” ideology strongly predicts interruptions, just as in the United States. Yet, important divergent institutional design features between the two apex courts translate into meaningful behavioral differences, with the greater power of the Chief Justice resulting in differences in interruptions. Finally, gender effects are lower and only identifiable with new methodological techniques we develop and …

Environmental War, Climate Security, And The Russia-Ukraine Crisis, Mark P. Nevitt

Faculty Articles

This Article addresses the Russia-Ukraine conflict’s broad implications for energy security, climate security, and environment protections during wartime. I assert that in the short-term the Russian-Ukraine war is poised to hinder much-needed international climate progress. It will stymie international decarbonization efforts and cause greater uncertainty in other climate-destabilized parts of the world, such as the Arctic. While Russia has become a pariah in the eyes of the United States and other Western nations, it has forged new partnerships and capitalized on new, lucrative energy markets outside the West and Global South. But in the long term, the global renewable energy …

Why Equity Follows The Law, Adam J. Macleod

Faculty Articles

Renewed attention to equity in higher education is welcome because true equity helps us to reason together well. When administered correctly, the jurisprudence of equity models civil discourse and, therefore, can teach us how to carry out civic engagement reasonably. Equitable interpretation of the law teaches us how to understand each other charitably. And equity’s deference to law teaches us how to reason well together about our practical problems. Law is the practical reasoning that we do together. Equity serves the ends of justice by serving law, rather than undermining it. These functions of equity in adjudication point toward a …

Criminal Subsidiaries, Andrew K. Jennings

Faculty Articles

Corporate groups comprise parent companies and one or more subsidiaries, which parents use to manage liabilities, transactions, operations, and regulation. Those subsidiaries can also be used to manage criminal accountability when multiple entities within a corporate group share responsibility for a common offense. A parent, for instance, might reach a settlement with prosecutors that requires its subsidiary to plead guilty to a crime, without conviction of the parent itself—a subsidiary-only conviction (SOC). The parent will thus avoid bearing collateral consequences—such as contracting or industry bars—that would follow its own conviction. For the prosecutor, such settlements can respond to criminal law’s …

Partisan Panel Composition And Reliance On Earlier Opinions In The Circuit Courts, Stuart M. Benjamin, Byungkoo Kim, Kevin M. Quinn

Faculty Articles

Does the partisan composition of three-judge panels affect how earlier opinions are treated and thus how the law develops? Using a novel data set of Shepard’s treatments for all cases decided in the U.S. courts of appeals from 1974 to 2017, we investigate three different versions of this question. First, are panels composed of three Democratic (Republican) appointees more likely to follow opinions decided by panels of three Democratic (Republican) appointees than are panels composed of three Republican (Democratic) appointees? Second, does the presence of a single out-party judge change how a panel relies on earlier decisions compared to what …

The Legal Crisis Within The Climate Crisis, Mark P. Nevitt

Faculty Articles

Climate change creates a difficult choice for property owners and governmental officials alike: Should they invest in costly climate adaptation measures or retreat from climate-exposed areas? Either decision is fraught with legal uncertainty, running headfirst into antiquated legal doctrines designed for a more stable world. Climate impacts to the coastline are forcing policymakers to consider four adaptation tools: (1) resisting climate impacts by building sea walls and armoring the shoreline; (2) accommodating those impacts by elevating existing structures; (3) managed retreat such as systematically and preemptively moving people out of harm’s way; and (4) reactively moving people to new locations …

Second-Class Administrative Law: Lincoln V. Vigil'S Puzzling Presumption Of Unreviewability, Matthew B. Lawrence

Faculty Articles

Administrative law ordinarily presumes that someone hurt by “arbitrary and capricious” agency action may seek relief in federal court unless Congress says otherwise. Administrative law does the opposite, however, when the harmful agency action happens to be one “allocating a lump-sum appropriation” (whatever that means). When it comes to spending programs that courts deem to fit in this ill-defined category, agency actions are presumptively immune from judicial review, insulated from the safeguards of administrative law no matter how arbitrary.

This Article looks behind the superficial, technocratic simplicity of the presumption of unreviewability through a novel, person-sensitive study of its origins …

Making Sense Of Abatement As A Tort Remedy, Anthony J. Sebok

Faculty Articles

Controversy over public nuisance in recent high profile cases invites the question of whether, and to what extent, it is limited by its roots in tort law. This article, which was prepared for the 2023 Clifford Symposium on “New Torts” focuses on causes of action in which the state seeks to enjoin the defendant by requiring that it abate the consequences of the invasion of a public right. In the most controversial of these public nuisance actions, such as lead paint and opioids, the wrongful conduct that is remedied by the injunctive relief has already ceased, and the state does …