Law Commons^™

Tilted Versus Reasonable Interpretation Of Tax Law, Steve R. Johnson

Scholarly Publications

In part, Interpretation Matters is about the craft of advocacy, how statutory interpretation arguments can be effectively made – and effectively countered – in state and local tax cases. For example, when one’s opponent in such a case invokes one or another of the canons of construction, how is that canon to be blunted?

One strategy we often have explored is fighting fire with fire – that is, identifying and asserting another recognized canon that leads to an opposite conclusion. One of the most famous articles on statutory interpretation arrayed dozens of pairs of canons that seemingly contradict each other. …

Framing Change: Cause Lawyering, Constitutional Decisions, And Social Change, Mary Ziegler

Scholarly Publications

This article contends that current critics of change-oriented litigation assume a particular model of the relationship between law and social change: law is argued to mirror popular mores, and judicial decisions are thought at most to suppress unusual or outlying laws. This model is incomplete, because judicial decisions may help to change how a social cause is defined and labeled. In presenting a supplementary model, I argue that judicial decisions reframe debates, privileging some arguments, marginalizing others, altering the coalitions on either side and influencing the types of legal reform those coalitions are able to pursue.

A series of state …

Evolving Regulation In The New Energy Boom States, Hannah J. Wiseman

Scholarly Publications

No abstract provided.

The Equity Trustee, Kelli A. Alces

Scholarly Publications

As we reel from the effects of a recent financial disaster, it is apparent that there is a significant gap in corporate governance and accountability for management. One reason we have experienced this financial cataclysm is the inability of shareholders to do the "shareholderj ob. " Shareholders, as the putative owners of corporations, hold a venerated place in corporate governance. They are responsible for electing directors and monitoring management as well as valuing companies through trades in a vigorous market. The shareholder collective action problem and resulting rational apathy have kept shareholders from effectively fulfilling their role in corporate governance. …

The Judicial Instinct To Harmonize Statutes, Steve R. Johnson

Scholarly Publications

Judges like to reach results that harmonize statutory meanings, both meanings within given statutes and meanings among statutes. That inclination applies as fully in tax cases as in nontax cases, and in state and local tax cases as well as in federal tax cases. Effective advocates in state-local tax controversies recognize that judicial tropism and use it, whenever possible, in their clients’ interests.

Part I discusses the harmonization instinct generally. Part II illustrates application of the harmonization approach in state and local cases. Part III notes some limitations on and unsettled questions regarding the harmonization.

Intermountain And The Growing Importance Of Administrative Law In Tax Law, Steve R. Johnson

Scholarly Publications

On September 29, 2009, Treasury issued regulations retroactively extending the six-year limitations period for income tax deficiencies resulting from basis overstatements. In its May 6 Intermountain decision, the Tax Court unanimously invalidated those regulations, but on divided rationales. The government has appealed.

lntermountain is a must-read for tax academics and practitioners. It is among the richest decisions on the procedural and substantive validity of tax regulations. Moreover, the opinions in the case, subsequent cases on the issue, .and commentary on these opinions and cases present genuine opportunity for improvement of the law.

This report has five sections. Section I sketches …

When General Statutes And Specific Statutes Conflict, Steve R. Johnson

Scholarly Publications

It’s no secret that the pace of lawmaking in the United States has accelerated dramatically in recent decades. So much so that one may be forgiven for thinking that the best law reform would be a moratorium on further law reform – - to give citizens, their legal representatives, and government officials the opportunity to catch up with the laws we already have made.

Legislatures, agencies, and courts all have made their contributions to the torrent of lawmaking. The phenomenon has been attributed to various causes, including growing populations, greater population densities as a result of urbanization, rapid technological changes, …

The Adam Walsh Act And The Failed Promise Of Administrative Federalism, Wayne A. Logan

Scholarly Publications

For advocates of federalism, these are uncertain times. With hope of meaningful judicial federalism having largely receded, and Congress persisting in its penchant for intrusions on state authority, of late several scholars have championed the capacity of executive agencies to enforce and preserve federalism interests. This paper tests this position, providing the first empirically based critical analysis of administrative federalism, focusing on the recently enacted Adam Walsh Act, intended by Congress to redesign states’ sex offender registration and community notification laws. The paper casts significant doubt on the accepted empirical assumptions of administrative federalism, adding to the limited evidence amassed …

Litigating The Ghost Of Gideon In Florida: Separation Of Powers As A Tool To Achieve Indigent Defense Reform, Wayne A. Logan

Scholarly Publications

This paper, part of a symposium addressing indigent defense-related issues, examines litigation challenging a Florida law that expressly prohibits courts from granting public defender motions to withdraw on the basis of an alleged conflict of interest caused by excessive caseload or underfunding.

Tax Court Invalidates New Section 6501(E) Regulations, Steve R. Johnson

Scholarly Publications

The title of an article of mine in the Fall 2009 issue of the NewsQuarterly asked “What’s Next in the Section 6501(e) Overstated Basis Controversy?” The Tax Court answered that question on May 6, 2010, in its decision Intermountain Insurance Service of Vail, LLC v. Commissioner, 134 T.C. No. 11. In that decision, the court invalidated two temporary regulations that had been issued on September 24, 2009: sections 301.6229(c)(2)-IT and 301.6501(e)-IT.

Revisiting Berle And Rethinking The Corporate Structure, Kelli A. Alces

Scholarly Publications

No abstract provided.

Political Institutions And Judicial Role In Comparative Constitutional Law, David Landau

Scholarly Publications

Comparative constitutional law scholarship has largely ignored political institutions. It has therefore failed to realize that radical differences in the configuration of political institutions should bear upon the way courts do their jobs. This Article develops a comparative theory of judicial role that focuses on broad differences in political context, and particularly in party systems, across countries. I use the jurisprudence of the Colombian Constitutional Court (supplemented by briefer studies of the Hungarian and South African Constitutional Courts) to demonstrate how differences in political institutions ought to impact judicial role. Because Colombian parties are unstable and poorly tied to civil …

Arbitration Clauses In Ceo Employment Contracts: An Empirical And Theoretical Analysis, Erin O'Hara O'Connor, Kenneth Martin, Randall Thomas

Scholarly Publications

A bill currently pending in Congress would render unenforceable mandatory arbitration clauses in all employment contracts. Some perceive these provisions as employer efforts to deprive employees of important legal rights. Company CEOs are firm employees, and, unlike most other firm employees, they can actually negotiate their employment contracts, very often with attorney assistance. Moreover, many CEO employment contracts are publicly available, so they can be examined empirically. In this paper, we ask whether CEOs bargain to include binding arbitration provisions in their employment contracts. After exploring the theoretical arguments for and against including such provisions in these agreements, we use …

Is Lost Tax Revenue Property Under Rico?, Steve R. Johnson

Scholarly Publications

The last installment of this column began an examination of the use of the federal civil RICO Act in state and local tax administration controversies. This installment closes the loop by answering questions posed, but not resolved, last time. This column explores whether uncollected tax revenue - or loss of the opportunity to collect tax revenue - constitutes “business or property” under the civil RICO statute. This exploration also takes up the related question whether tax authorities will be able to overcome judicial reluctance to turning RICO into a tax collection statute.

Part I of this column reprises how RICO …

Greening The Economy Sustainably, David L. Markell

Scholarly Publications

No abstract provided.

The Limits Of Formal Economics In Tort Law: The Puzzle Of Negligence, Shawn J. Bayern

Scholarly Publications

No abstract provided.

An Irs Duty Of Consistency: The Failure Of Common Law Making And A Proposed Statutory Solution, Steve R. Johnson

Scholarly Publications

The IRS should endeavor to treat similarly-situated taxpayers similarly, but does this aspiration rise to the level of a judicially enforceable duty? If the IRS takes a position on Taxpayer B that is correct under the law but is inconsistent with a position the IRS took on similarly-situated Taxpayer A, should the IRS’s position on Taxpayer B fail simply because of the inconsistency? These questions implicate important themes, such as fairness, the rule of law, separation of powers, administrative exigencies, the role of common law making in a highly positivistic system, and the sustainability of legal regimes.

A constitutional standard …

Innocence After Death, Samuel R. Wiseman

Scholarly Publications

No abstract provided.

Civil Rico And State And Local Taxes, Steve R. Johnson

Scholarly Publications

Vast is the garden of state and local taxation, and exotic are some of the blossoms to be found there. This installment of Interpretation Matters will consider one of those curious blooms: use of the civil RICO statute directly or collaterally in state-local tax administration. The U.S. Supreme Court has addressed the state-local tax implications of civil RICO three times in recent years: in the Anza case in 2006, Bridge in 2008, and Hemi, decided on January 25, 2010.

The first section below sketches civil actions under the Racketeer Influenced and Corrupt Organizations Act. The next three sections describe Anza, …

Public Communities, Private Rules, Hannah J. Wiseman

Scholarly Publications

As the American population grows, communities are seeking creative property tools to control individual land uses and create defined community aesthetics, or distinctive “built environments.” In the past, private covenants were the primary mechanism to address this sort of need. Public communities, however, have begun to implement covenant-type “private” rules through zoning overlays, which place unusually detailed restrictions on individual property uses and, in so doing, have created new forms of “rule-bound” communities. This Article will argue that all types of rule-bound communities are uniquely important because they respond to resident consumers’ heightened demand for a community aesthetic. It will …

Regulatory Adaptation In Fractured Appalachia, Hannah J. Wiseman

Scholarly Publications

America faces a growing energy challenge. We require energy for our every activity, yet we increasingly recognize that there are no easy energy solutions. Reliance upon traditional fossil fuels – many of them imported – jeopardizes our national security and releases harmful emissions, yet renewable energy technologies require high capital investments and have environmental impacts of their own. As we address this challenge and move toward a more sustainable energy future, “bridge fuels” like domestically-produced natural gas offer a near-term compromise between renewables and traditional fossil fuels. A growing quantity of bridge fuel in the form of domestic natural gas …

An Overview Of Tsca, Its History And Key Underlying Assumptions, And Its Place In Environmental Regulation, David Markell

Scholarly Publications

No abstract provided.

Erie And Federal Criminal Courts, Wayne A. Logan

Scholarly Publications

Today, low-level state and local criminal laws figure critically in federal prosecutions, serving as the initial bases for police seizures that yield evidence leading to more serious federal charges (usually involving drugs or firearms). While police resort to such laws as pretexts to stop and arrest individuals has been frequently addressed, this article provides the first analysis of how federal courts actually interpret and apply the laws. In doing so, the article reveals a surprising reality, long dismissed as a doctrinal impossibility: federal judicial use of the analytic framework of Erie v. Tompkins to resolve criminal cases.

As the article …

Who Decides Who Decides: Federal Regulatory Preemption Of State Tort Law, Mark Seidenfeld

Scholarly Publications

No abstract provided.

The Role Of Citizen Spotlighting Procedures In Promoting Citizen Participation, Transparency, And Accountability, David Markell

Scholarly Publications

No abstract provided.

An Empirical Survey Of Climate Change Litigation In The United States, David Markell, J. B. Ruhl

Scholarly Publications

A quickly growing number of commentators have suggested that the U.S. courts are already significant drivers of climate change policy, and that their role is likely to increase. In addition to fashioning law on their own, judicial decisions have significant implications for the work of the other branches of government. This Article provides a chronicling of every climate change case filed through December 31, 2009 (more than 130 such cases). It presents basic information about the cases, e.g., the types of cases, where they have been brought, the types of parties involved, and the outcomes. It also analyzes the data …

Repeat Offenders: If They Learn, We Punish Them More Severely, Murat C. Mungan

Scholarly Publications

Many legal systems are designed to punish repeat offenders more severely than first time offenders. However, existing economic literature generally offers either mixed or qualified results regarding optimal punishment of repeat offenders. This paper analyzes optimal punishment schemes in a two period model, where the social planner announces possibly-different sanctions for offenders based on their detection history. When offenders learn how to evade the detection mechanism employed by the government, escalating punishments can be optimal. The contributions of this paper can be listed as follows: First, it identifies and formalizes a source which may produce a marginal effect in the …

Sparks Nugget: State Tax Exemption Of Food Used By Casinos For Comped Meals, Steve R. Johnson

Scholarly Publications

No abstract provided.

Tax Shelters: Up Off The Canvas?, Steve R. Johnson

Scholarly Publications

Recently, taxpayers prevailed at trial in two federal tax shelter cases: TIFD III-E Inc. v. United States, 2009 WL 3208650 (D. Conn. Oct. 7, 2009) (“Castle Harbour III”) and Consolidated Edison Co. v. United States, 2009 WL 3418533 (Fed. Cl. Oct. 21, 2009) (“Con Ed”). Doing full justice to these cases would require detailed descriptions of their facts, the arguments presented and the rationales in the opinions. I leave this work to the inevitable parsing and spinning in briefs in tax shelter cases to come and to more length commentary. See, e.g., Lee A. Sheppard, Con Ed’s Night of the …

The Politics And Psychology Of Gasoline Taxes: An Empirical Study, Shi-Ling Hsu

Scholarly Publications

Economists are beginning to form a consensus that a carbon tax is the most effective and cost-effective way to reduce global greenhouse gas emissions. The insight of economists and other policy analysts is that, in the greenhouse gas context, the design of cap-and-trade programs creates so many opportunities for rent-seeking that they may not be very cost-effective, and may not reduce greenhouse gas emissions at all. Carbon tax proposals are appealing because they are so simple and sensible that rent-seeking would have to be very audacious to succeed.

Carbon tax proposals, however, have divided economists from almost everybody else. In …