Law Commons^™

Tax's Digital Labor Dilemma, Amanda Parsons

Publications

Digitalization has reshaped the relationship between companies and their customers and users. Customers and users increasingly serve a dual role. They are not only consumers but also producers, creating data and content. They are a value-creating workforce, functioning as “digital laborers.”

Digital laborers’ value creation highlights that there are two parts to the question of whether multinational companies are paying their “fair share” of taxes—one of amount and one of location. First, are companies’ total tax bills paid across all countries in line with their global income? Second, is taxing authority over multinational companies’ income being divided amongst countries in …

May I Pay More? Lessons From Jarrett For Blockchain Tax Policy, Amanda Parsons

Publications

In this article, Parsons examines Jarrett, t in which the taxpayers argue that blockchain reward tokens should be included in income only upon sale or exchange (a position that would raise their tax bills), and she explores why they sought this treatment and what implications it holds for policymakers trying to develop a tax regime for blockchain activities.

Cryptocurrency, Legibility, And Taxation, Amanda Parsons

Publications

In Jarrett v. United States, a taxpayer in Tennessee is arguing that staking cryptocurrency did not result in him earning “income” under federal income tax law. This case illustrates the fundamental challenge that cryptocurrency and blockchain technology present for tax law. Wealth creation in the crypto space is not readily legible to the state. This absence of legibility threatens tax law’s reliance on placing economic activities into categories to determine how they should be taxed. Furthermore, this case highlights the harms Congress and Treasury are risking by not taking action on cryptocurrency taxation. The uncertainty and lack of guidance on …

Remutualization, Erik F. Gerding

Publications

Policymakers need to rediscover the organizational form of business entity as a tool of financial regulation. Recent and classic scholarship has produced evidence that financial institutions organized as alternative entity forms – including investment bank partnerships and banks and insurance companies organized as mutual or cooperatives – tend to take less risk, exploit customers/consumer less, or commit less misconduct compared to counterparts organized as investor-owned corporations. This article builds off the work of Hill and Painter on investment banks organized as partnerships, Hansmann on the history and economics of banks and insurance companies organized as mutuals and cooperatives, and other …

The Economics Of American Higher Education In The New Gilded Age, Paul Campos

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No abstract provided.

The Potemkin Temptation Or, The Intoxicating Effect Of Rhetoric And Narrativity On American Craft Whiskey, Derek H. Kiernan-Johnson

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No abstract provided.

Achieving American Retirement Prosperity By Changing Americans' Thinking About Retirement, Peter H. Huang

Publications

There are many decisions that Americans have to make about retirement before, at, and after retirement. For example, Americans have to decide when to start saving for retirement, how much to save, how to invest those savings, when to retire, when to claim social security, and how to take required minimum distributions from 401(k) plans or Individual Retirement Accounts. Different things can go wrong at each of these decisions for different reasons. Many Americans, for various reasons, including insufficient energy, money, motivation, time, and understanding, do no retirement planning. Some Americans do some retirement planning, yet worry they are doing …

Food Policy And Cognitive Bias, Paul F. Campos

Publications

No abstract provided.

Tax Neutrality And Tax Amenities, David Hasen

Publications

Efforts to identify and implement an appropriate tax neutrality benchmark have been persistent themes in scholarly and policy debates on international taxation for fifty years. This paper questions whether the concept of tax neutrality has been adequately specified for analyzing the efficiency properties of international tax systems. As distinct from the closed-economy setting, in the open-economy setting, neither tax revenues received nor the burdens that tax revenues pay for may be taken as fixed. Because tax revenues finance infrastructure and other productivity-enhancing goods - so-called "tax amenities" - and because capital burdens infrastructure, the reallocation of tax revenues among jurisdictions …

Tax Deductions Of Palimony Arrangements, Kimberly Stanley

Publications

Ninth Circuit finds that for a tax deduction, consideration must be evaluated under federal tax law, not state contract law, explains Kimberly Stanley of Golden Gate University School of Law.

Happiness In Business Or Law, Peter H. Huang

Publications

This article provides a short introduction to recent happiness research and its applications to business or law that is organized as follows. Section I briefly considers: (1) troubling and not so troubling reservations about happiness research, and (2) how money and happiness are related. Section II concisely surveys two sets of applications of happiness research to business, namely: (1) workplace well-being and meaning, and (2) marketing. Section III succinctly reviews two categories of happiness research implications for law: (1) business regulation, and (2) law student and lawyer happiness.

Legal Transitions And The Problem Of Reliance, David M. Hasen

Publications

This Article analyzes the literature on legal transitions. The principal focus is taxation, but the analysis generalizes to other areas. I argue that the theoretical apparatus developed by scholars active in the legal transitions area suffers from significant conceptual shortcomings. These shortcomings include the unwarranted assimilation of legal to factual change, the naturalization of conventional arrangements, and the disregard of the distinction between making law and finding it. As a consequence, the recent literature offers an analysis that is unable either to explain actual transitions or to provide an adequate theory of how legal change should take place. In the …

Critique Of U.S. House Bill 2454 On Climate Change, Michael J. Waggoner

Publications

The U.S. House of Representatives, in June 2009, approved a bill to create a cap and trade system and a system of regulations and subsidies to address the problems of climate change. The U.S. Senate is now considering remedies for climate change. The approach of House Bill 2454 is ill-advised, and should be rejected by the Senate, because of the problems outlined below. I propose that these problems that would not be presented by a carbon tax, a simpler and more effective remedy for the risk of climate change.

The Tax Treatment Of Advance Receipts, David Hasen

Publications

Under the present income tax, some advance receipts are neither taxable on receipt nor deductible on repayment, while others are taxable when received and deductible when repaid or paid for. From a purely theoretical perspective, it remains unclear why different sets of rules apply in different cases. For example, if the fact of unrestricted control over the payment compels the conclusion that it is income, then most advance receipts, including loan proceeds, should be included in income immediately. Conversely, if the presence of an offsetting liability compels the conclusion that the payment is not (yet) income, then most advance receipts, …

Unwinding Unwinding, David Hasen

Publications

"Unwinding" is a common, if not ubiquitous, feature of tax practice. In a successful unwind, parties to a prior transaction or arrangement back out of it by means of a later transaction and are treated for tax purposes as having engaged in no transactions at all. In a failed unwind, the parties undertake the later transaction, but it is not treated as nullifying the effects of the first transaction; rather, two separate transactions are deemed to have taken place, each with its own tax consequences.

This Article develops the first unified theoretical framework for analyzing tax unwinding. It also provides …

Why And How To Tax Carbon, Michael Waggoner

Publications

Increased concern about possible global warming due to rising levels of greenhouse gases such as carbon dioxide ("CO2") suggests the need to control emissions of CO2. This article explores a system of revenue-neutral carbon taxes as a supplement or alternative to other CO2 control systems such as subsidies, regulation, and cap-and-trade. A system of carbon taxation should be, the Article suggests, sufficiently fairer and simpler and more efficient than the other possible systems of CO2 control and that it merits serious consideration. Because the carbon tax that is suggested would be revenue neutral, it should be politically acceptable. Problems with …

Liberalism And Ability Taxation, David Hasen

Publications

Recent tax scholarship has embraced the idea of individual endowment taxation, or taxation of human abilities, as an approach to ideal tax theory. Under endowment taxation, individuals are taxed according to their native abilities to command resources, rather than according to any actual index of goods or expenditures, such as income, consumption, or wealth, that otherwise might be thought relevant to the assignment of tax burdens. This Article argues that endowment taxation is incompatible with political theories that might broadly be described as "liberal," to the extent such theories support redistribution. It also argues that limited forms of endowment taxation …

Conference Transcript: The New Realism: The Next Generation Of Scholarship In Federal Indian Law, Sarah Krakoff

Publications

No abstract provided.

"Failure To Pay Any Poll Tax Or Other Tax": The Constitutionality Of Tax Felon Disenfranchisement, Sloan G. Speck

Publications

If the government convicts a citizen under the tax evasion provisions of the Internal Revenue Code, some state disenfranchisement laws preclude that citizen — now a felon — from voting. In this sense, the right to vote depends on the payment of federal income taxes. The Constitution's Twenty-Fourth Amendment, however, guarantees that the federal franchise “shall not be denied or abridged... by reason of failure to pay any poll tax or other tax.” If “other tax” includes income taxes, the text of the Twenty-fourth Amendment appears to prohibit the disenfranchisement of citizens convicted of tax felonies. This Comment argues that …

The Patent Office Meets The Poison Pill: Why Legal Methods Cannot Be Patented, Andrew A. Schwartz

Publications

In 2003, for the first time in its 170-year history, the United States Patent Office began awarding patents for novel legal innovations, in addition to traditional inventions such as the telephone or airplane. Commentators have accepted the Patent Office's power to grant legal method patents, but at the same time have criticized this new type of patent on policy grounds. But no one has suggested that the Patent Office exceeded its authority by awarding patents for legal methods, until now.

In the Patent Act of 1952, which is still in effect today, Congress established certain requirements for patentability, including a …

Patents On Legal Methods? No Way!, Andrew A. Schwartz

Publications

An “invention,” as used in the United States patent laws, refers to anything made by man that employs or harnesses a law of nature or a naturally occurring substance for human benefit. A watermill, for instance, harnesses the power of gravity to run machinery. But legal methods, such as tax strategies, are not inventions in this sense, because they employ “laws of man” — not laws of nature to produce a useful result.

Tax Strategies Are Not Patentable Inventions, Andrew A. Schwartz

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No abstract provided.

Assessing Internal Revenue Code Section 132 After Twenty Years, Wayne M. Gazur

Publications

In 1984, Congress enacted Internal Revenue Code section 132 to bring more certainty to the taxation of employee fringe benefits. This article examines the impact of the legislation from the standpoint of administrative pronouncements and taxpayer litigation. The article concludes that section 132 has produced little litigation, but primarily because it has played the role of increasing exclusions. It remains unclear whether section 132 has also contained the growth of new forms of nonstatutory fringe benefits.

Abandoning Principles: Qualified Tuition Programs And Wealth Transfer Taxation Doctrine, Wayne M. Gazur

Publications

In 1996 Congress gave its imprimatur to a modest qualified tuition program provision. Over the course of the next five years the provision was expanded, providing additional wealth transfer taxation and income taxation benefits. This essay proposes that unless limited, such benefits are inconsistent with established taxation principles and also have the potential to undermine the integrity of the wealth transfer tax structure and the progressive nature of the income tax.

A Primer On The Sale Of Residence Tax Rules After The Proposed Regulations, Wayne M. Gazur

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No abstract provided.

The Conundrum Of Executive Compensation, Mark J. Loewenstein

Publications

Much of the scholarship on executive compensation that appears in law reviews assumes that large U.S. corporations overpay their chief executive officers ("CEOs"). This assumption is understandable, as many of these compensation packages are indeed stunning. The question of whether CEOs are overpaid, however, is complicated. Some scholars in other disciplines, principally in economics and management science, have studied the issue but, as this Article demonstrates, this literature does not confirm the assumption. Indeed, some studies suggest that CEO pay is competitive. Moreover, efforts to reduce the level of executive compensation may have the unintended consequence of achieving the opposite …

Corporate Finance, Corporate Law And Finance Theory, Peter H. Huang, Michael S. Knoll

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No abstract provided.

Do They Practice What We Teach?: A Survey Of Practitioners And Estate Planning Professors, Wayne M. Gazur

Publications

This article presents the results of a 1998 mail survey sent to members of the American Bar Association Real Property, Probate & Trust Law Section and to law professors teaching estate planning. The principal goal of the survey was to compare the opinions of practitioners and law professors concerning the importance of 31 estate planning issues and techniques. The survey also included an open-ended solicitation of issues deemed significant by the participant.

The survey found consistency between practitioner and professor responses with respect to techniques such as Crummey planning. Legal education appears to be effective in dealing with core principles. …

Muddling Along With The Federal Wealth Transfer Tax: A Survey Of Practitioners And Law School Professors, Wayne M. Gazur

Publications

Recent efforts to repeal the wealth transfer tax system have prompted enormous discussion. In this Article, the author presents the results of his survey of members of the American Bar Association Real Property, Probate and Law Section about this issue and other reforms which have been enacted or suggested.

The Roth Ira Cuts Federal Revenues, With No Benefit To Taxpayers, Michael Waggoner

Publications

No abstract provided.