Digital Commons Network^™

Should Harvard And Other Large Nonprofits Be Taxed?, Reuven S. Avi-Yonah

Articles

In this installment of Reflections With Reuven Avi-Yonah, Avi-Yonah examines justifications for exempting Harvard University and other large nonprofits from tax and argues that treating those organizations like large C corporations would not be such a bad thing. The proposal to subject large university endowment investment income to the corporate tax rate of 21 percent instead of the current 1.4 percent rate has engendered significant debate. More recently, President Trump’s threat to strip Harvard University of its tax-exempt status and treat it as a taxable corporation has likewise been controversial. In their recent Tax Notes article, Harvey Dale, Daniel Hemel, …

Can Side By Side Work?, Reuven S. Avi-Yonah

Articles

On June 26 Treasury Secretary Scott Bessent announced that a compromise had been reached between the United States and the rest of the G7 (Canada, France, Germany, Italy, Japan, and the United Kingdom), providing that pillar 2 of the OECD’s two-pillar global tax reform project will not apply to U.S. multinationals. As a result, proposed section 899, which would have imposed retaliatory taxation on corporations from countries that apply pillar 2 (and specifically the undertaxed profits rule) to U.S.-based multinationals, was removed from the One Big Beautiful Bill Act.

The Irs Approach To Periodic Adjustments: Losing Bet Or Royal Flush?, Jeffery M. Kadet, Reuven S. Avi-Yonah, David G. Chamberlain, Stephen L. Curtis

Articles

In this article, the authors argue that GLAM 2025-001 is consistent with the terms and purposes of the commensurate with income provision, relevant legislative history, and applicable case law and that the IRS approach to commensurate with income enforcement is a valid application of discretion delegated by Congress to the Treasury under Loper Bright.

Consensus And Conflict Over Context: Select Criminal Law And Procedure Cases From The Supreme Court's 2024-25 Term, Eve Brensike Primus, Elena Schultz

Articles

In its 2024-2025 Term, the Supreme Court emphasized the utility—and necessity—of context-based, fact-sensitive analyses throughout its criminal law and procedure cases. Though the Justices sparred over how to derive meaning from factual, structural, legal, and historical contexts, they tended to agree that courts should not be artificially restricted from considering the breadth of the record before them.

Should The United States Abandon Citizenship-Based Taxation?, Reuven S. Avi-Yonah

Articles

President Trump proposed during the election campaign to end the “doubletaxation” of American citizens living overseas.To which the answer is,what double taxation?Americans living overseas already benefit from three significant provisions thatin most cases prevent any double taxation, and because of these most of them donot have any U.S. tax liability.Those who do are typically wealthier, derive incomefrom investments or from high wages, and are not subject to foreign tax becausethey live in tax havens or in countries that do not tax rich immigrants on foreignsource income, and they do not have any income from their country of residence.

Periodic Adjustments And The Arm's Length Principle, Reuven S. Avi-Yonah

Articles

The Internal Revenue Service (IRS) recently issued AM 2025-001, whichrepresents a significant change in its interpretation of the periodic adjustment rules for transfers of intangibles within a multinational and forcost-sharing agreements.Arguably, this finally brings the IRS into compliancewith the “commensurate with income” language added to Code Sec. 482 in1986.

The State Capacity Crisis, David Schleicher, Nicholas Bagley

Articles

Crumbling infrastructure, inadequate housing supply, failing schools, public disorder—few government services seem to work as they should. For a decade, a nascent scholarly movement has been warning that America faces a crisis of state capacity. Although the major figures in this “state capacity movement” have identified the right problem, they concentrate almost exclusively on the federal government. That yields a misdiagnosis of why the American government lacks capacity and leads to solutions that are unlikely to accomplish much. In the United States, it is state and local governments that do most of what “the state” does, and they suffer from …

Examining State Climate Superfund Legislation, Madison Calhoun, Rachel Rothschild, Jonathan Binder, Elenda Mihaly, Justin Mankin, Ben Lippard, Mary Wood

Articles

There has been an influx of “climate superfund” bills introduced and adopted in state legislatures across the country. Modeled after the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), these laws are designed to recover costs from large emitters of greenhouse gases (GHGs) to pay for climate adaptation infrastructure. Following CERCLA’s strict liability framework, major polluters in New York and Vermont would be required to pay into state-managed funds in proportion to their shares of total GHG emissions; California, Maryland, Massachusetts, New Jersey, and Oregon have proposed similar bills. On March 19, 2025, the Environmental Law Institute hosted a …

History's Identity Crisis, Allison Orr Larsen

Faculty Publications

Lower court judges across the country are struggling to manage the Supreme Court’s new “history and tradition” test that applies to Second Amendment challenges. This Article articulates one fundamental reason for the struggle: nobody is quite sure what a judge is actually doing when she evaluates claims about what happened in the past. Is it traditional legal reasoning— weighing evidence and looking for patterns? Is it fact-finding of the sort we think expert historians should testify about—conveying to a trial judge the best evidence we have about the purpose of colonial gun laws? Or is it a different sort of …

Rebuilding The Foundation: Addressing A Crisis In Juror Participation, Paula Hannaford-Agor

Faculty Publications

Courts are experiencing dramatic decreases in juror response and appearance rates, threatening the future of jury trials and the legitimacy of the American justice system. Effective strategies exist to reverse this trend, if justice system stakeholders are willing to employ them.

Preserving The Future Of Juries And Jury Trials, Paula Hannaford-Agor

Faculty Publications

Amid rapid technological and social change, a new initiative explores how judges, court staff, trial lawyers, and other justice system stakeholders can preserve juries and jury trials, strengthen public trust, and remain a pillar of democracy.

In 2024, the National Center for State Courts (NCSC) launched Preserving the Future of Juries and Jury Trials, a project that built on Just Horizons’ methodological foundation of strategic foresight and its premise that data-driven public services and sociopolitical discord have the greatest potential impact on court operations. For this project, NCSC imagined how these trends would affect juries and jury trials in each …

Carceral Bonds, Tyler E. Dougherty

Faculty Publications

Over the past 50 years, the U.S. financed a massive physical and fiscal expansion of prisons via the municipal bond market—with devastating results. This project is the first to shine a light on the role of municipal debt in state-level carceral decision making, spotlighting the ways that the municipal bond market affects states’ capacities to incarcerate.

This Article argues that the two primary controls of states’ use of the carceral bond market—(1) market discipline and (2) states’ fiscal constitutions—are particularly ineffective at limiting states’ spending on prisons. This failure to restrain states’ spending through the carceral bond market enables private …

In Through The Side Door: Anti-Asian Nativism, U.S. Immigration, And Foreign Policy—A Legal History And Case Study, Deenesh Sohoni, Vivian E. Hamilton, Chinua Thelwell

Faculty Publications

The 19th- and early 20th-centuries were marked by pervasive anti-Asian sentiment, and antipathy towards people of color more generally. Giving legal effect to the anti-Asian nativism prevalent at the time, U.S. policies prohibited most Asian immigration and naturalization. In particular, immigration laws sought to exclude Asian laborers and working-class immigrants from entry. During the same period, however, the federal government determined that other Asian visitors—especially Chinese government officials, merchants, religious leaders, and students—could be useful in advancing U.S. political and economic interests abroad. Thus, in marked contrast to its inhospitable treatment of their working-class counterparts, U.S. policy facilitated the entry …

The Case For Specific Performance Of Personal Service Contracts, Kimberly D. Krawiec, Nathan B. Oman

Faculty Publications

The per se rule against specific enforcement of personal service contracts is well established under Anglo-American contract law. At the same time, there is a well-developed literature suggesting that specific performance is often a superior remedy to money damages, and those arguments apply with equal or greater force to personal service contracts. We, therefore, argue that this per se rule is mistaken. The per se rule has been justified by the need to avoid involuntary servitude, preserve personal autonomy, and husband judicial resources. We argue that these claims cannot justify a per se rule against specific performance, particularly as at-will …

Against The Sliding Scale, Alan J. Meese

Faculty Publications

Gavil and Salop claim that the Chicago School’s “conservative critique of antitrust law” has peddled numerous pro-defendant economic assumptions, misleading courts in their assessment of alleged exclusionary conduct. The resulting legal standards, they say, require plaintiffs to adduce too much evidence to establish a prima facie case, for instance, producing false negatives and thus allowing restraints that injure purchasers to avoid condemnation. Drawing on decision theory, they propose reforms to the rule of reason analysis applied to exclusionary agreements to extirpate the Chicago School’s baneful influence. In suggesting these reforms, they hope sometimes to alter the parties’ respective burdens of …

Reproductive Innovation And Reproductive Exceptionalism: How Private Health Insurance Coverage Of Fertility Treatment Complements Hostile Governmental Action And Expands Access To Assisted Reproduction In The United States, Myrisha S. Lewis

Faculty Publications

The use of fertility treatment and assisted reproductive technology (ART) in the United States and globally is increasing over time. As of April 2023, the World Health Organization estimates that approximately one in six individuals have faced infertility globally. Fertility treatment includes the use of drugs to stimulate egg production, in vitro fertilization (IVF), and, for some, the use of gestational surrogacy to aid in childbirth. Debates have abounded and continue to abound in federal legislatures, state legislatures, and society more broadly about the morality of abortion, contraception, and assisted reproduction, as well as whether governments, public insurers, and private …

Restructuring Ruritania: Bankruptcy, Sovereign Debt, And The Equity Receivership, Nathan B. Oman

Faculty Publications

The traditional legal story of sovereign restructuring goes something like this: foreign governments cannot file for bankruptcy under domestic law. When faced with the need to restructure unsustainable debts, they must negotiate with each of their creditors. Since the late 1980s, private debt has been held by increasingly diverse and dispersed bondholders, making renegotiation more difficult. Defaulting debtors face two basic problems: first, they have no process analogous to the automatic stay in bankruptcy, which can pause litigation by creditors and buy time for an orderly reorganization; second, and more importantly, they have no process analogous to the cramdown provisions …

Fairness Writ Large Or Small In International Criminal Justice, Nancy Amoury Combs

Faculty Publications

For this symposium, I was not assigned to talk about Megan [Fairlie]’s work per se, and so I initially planned to discuss something completely different. In the end, however, I came back to Megan’s work because I believe her scholarship provides a new way of thinking about the entrenched challenges currently facing our collective field of study: international criminal law and procedure.

As we all know, Megan was an accomplished comparativist, and her area of expertise was criminal procedure. Even more particularly, Megan specialized in the criminal procedure of the still relatively new international criminal courts and tribunals. She focused …

"We Can't Allow Iot Vendors To Pass Off All Such Liability To The Consumer": Investigating The U.S. Legal Perspectives On Liability For Iot Product Security, Prianka Mandal, Amit Seal Ami, Iria Giuffrida, Daniel Shin, Ella Sullivan, Adwait Nadkarni

Faculty Publications

As the regulatory landscape for the Internet of Things (IoT) evolves, vendors are moving towards certifying their products for security. Thus, we need to understand who is liable when certification failures result in harm, i.e., when certified products have vulnerabilities that are exploited to cause harm to users. This paper addresses the fundamental and timely question that has significant implications for vulnerability detection in certified products: who is liable for harm resulting from vulnerabilities in certified products, and who should be so liable? Through a qualitative analysis of contractual documents from 20 IoT vendors, this paper investigates how liability is …

New Threats To Campus Protest, Timothy Zick

Faculty Publications

This symposium Essay focuses on how universities responded, both initially and after the fact, to campus protests concerning the Hamas-Israel War. During those protests students and others erected encampments, held demonstrations, displayed signs, vandalized university property, and occupied buildings. Some protesters communicated anti-Semitic tropes and slogans. Although a few university leaders responded to the protests by negotiating with protest leaders, most relied on law enforcement and security to clear encampments and restore order. Since the initial protests, universities have adopted a spate of new policies that threaten campus protest. These measures include cancellation of already-permitted demonstrations, content-based speech restrictions, bans …

Understanding The Mechanisms Of Interpretative Change, Aaron-Andrew P. Bruhl

Faculty Publications

Interpretive methodology changes over time, and we appear to be in a period of particular ferment. In federal statutory interpretation, which is the focus of this Article, several important changes in interpretive methods have occurred in recent decades or are underway. There has been a gradual, decades-long shift away from intentionalist tools like legislative history. In addition, as the culmination of a series of smaller steps, the Supreme Court has just reshaped the doctrine governing deference to agency interpretations, a move that will require years of further clarification. And, although this shift is still taking shape, it appears that some …

Climate Liberalism And Decarbonization, Jonathan H. Adler

Faculty Publications

Existing climate policy goals require dramatic and rapid reductions in greenhouse gas (“GHG”) emissions. Achieving such reductions within the desired time frame is a tremendous challenge, particularly through conventional regulatory approaches. The conventional approach to environmental problems is to treat such problems as “market failures” that can be corrected by government intervention, such as through regulation. Such approaches are constrained by various sources of government failure that are exacerbated by the scale and scope of the problem. The knowledge problem, administrative transaction costs, and limits on regulatory throughput capacity all hamper the use of traditional regulatory tools to address the …

Climate Change And Constitutional Overreach, Jonathan H. Adler

Faculty Publications

The failure of the political process to produce meaningful climate mitigation policies has encouraged activists to pursues aggressive and innovative litigation strategies. An increasing number of climate-related lawsuits seek to control greenhouse gas emissions, impose liability on fossil fuel producers, or otherwise force greater action on climate change. In many of these cases, litigants have made aggressive constitutional claims that stretch the bounds of existing constitutional doctrine and threaten to entrench climate policies outside of the traditional political process. This Article critically assesses some of the constitutional arguments made in climate cases, including Massachusetts v. EPA and Juliana v. U.S. …

The State Of The Russian Media Through The Lens Of Democratization: 1991 As The Peak Of Openness In Russia’S Media Laws, Antonina Semivolos

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

The Failures Of The Biologics Price Competition And Innovation Act, Nick Corwin

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Housing Justice Pipeline: Harnessing Housing Clinics To Transform The Right To Counsel Movement, Erica Braudy, Thomas Honan, Tuhfa Begum

Seattle Journal for Social Justice

No abstract provided.

Table Of Contents, Sjsj

Seattle Journal for Social Justice

No abstract provided.

The First Prison, William Gillis

Seattle Journal for Social Justice

No abstract provided.

A Public Pools Grant Program For Racial Justice, Diana Rendler

Seattle Journal for Social Justice

No abstract provided.

And The Cycle Continues., Ashley Elizabeth

Seattle Journal for Social Justice

No abstract provided.