Digital Commons Network^™

Reforming State Corporate Income Taxes Can Yield Billions, Darien Shanske, Reuven S. Avi-Yonah, David Gamage

Articles by Maurer Faculty

The federal government should be providing states and localities with hundreds of billions of dollars in aid. The arguments against such aid, including the claim that the states have somehow been profligate, do not stand up to scrutiny. Nevertheless, it seems unlikely that the federal government will do enough, and it is already the case that the federal government is acting too slowly. States and local governments, which generally operate under balanced budget constraints, are, accordingly, already making sweeping cuts4 that will deepen the recession and reduce services when they are most needed.

Rather than make these cuts, it would …

June 2020 Magazine

Ergo

No abstract provided.

States Should Consider Partial Wealth Tax Reforms, David Gamage, Darien Shanske

Articles by Maurer Faculty

This article is a contribution to Project SAFE (State Action in Fiscal Emergencies). In other essays in this project, we explain steps the federal government should take to help state and local governments cope with their looming budget crises. The federal government is much better positioned to manage these crises than states and localities and, ideally, it would act sufficiently to prevent the need for state and local governments to cut spending or raise taxes. However, we fear that the federal government may fail to act sufficiently, leaving states and localities with the need to make painful spending cuts, raise …

Minority Vetoes In Consociational Legislatures: Ultimately Weaponized?, Devin Haymond

Indiana Journal of Constitutional Design

In societies emerging from or at risk for conflict, dividing power among rival groups—called power-sharing—can be an appropriate arrangement to maintaining peace. But how can groups, who are often emerging from violent conflict, trust sharing a government with rival groups that were just recently shooting at them?

A potential solution is the minority veto, which is allows minority groups to block the government from harming those groups’ vital interests. But what sorts of change blocking mechanisms constitute a minority veto? Who gets the veto power, and when can they be used? Do minority vetoes function as effective incentives for ensuring …

Models Of Pre-Promulgation Review Of Legislation, Rachel Myers

Indiana Journal of Constitutional Design

Pre-promulgation review seeks to harmonize legislation with the constitution by engaging in a dialogue among government institutions that seeks to prevent unconstitutional legislation from becoming law. Pre-promulgation review is an integral part of the lawmaking process, and this study seeks to unite scholarship on different methods of this review in a comparative survey to assist lawyers, policymakers, and scholars. A wide range of institutions may fulfill the function of reviewing proposed legislation for compliance with the constitution or other codes of national importance prior to their passage into law. Because of this diversity, scholarship on the topic of pre-promulgation review …

Taxonomy Of Powers And Roles Of Upper Chambers In Bicameral Legislatures, Carolyn Griffith

Indiana Journal of Constitutional Design

Bicameral legislatures exist around the world, with power divisions to create checks and balances on the constitutional order as a whole. In the context of constitutional design, this presents a variety of options of roles and rights given to each chamber at each step in both the legislative process and beyond. Taken as a whole, this taxonomy demonstrates there are nearly an infinite number of possibilities for separating powers between upper and lower chambers in bicameral legislatures. Often, these decisions are guided by the history of the country. For each federal legislature that places powers or votes in one chamber, …

How The Federal Reserve Should Help States And Localities Right Now, Darien Shanske, David Gamage

Articles by Maurer Faculty

The COVID-19 pandemic is a giant catastrophe, but the Federal Reserve can still mitigate the looming fiscal crises facing state and local governments. This article — a contribution to Project SAFE (State Action in Fiscal Emergencies) — builds on our prior background essay explaining state and local budget issues.

Capital Gains Tax Law And Policy In The U.S. And China: A Comparative Study, Chen Ye

Maurer Theses and Dissertations

This dissertation provides a review of tax theories, laws, and policies of the U.S. and China on taxing capital gains. Based on the review, I draw a comparative analysis of the two countries’ laws and policies and prescribe legislative options for taxing capital gains under the individual income tax law in China.

The dissertation contributes to both the Chinese literature and the U.S. literature: For China, this research takes upon an overlooked yet increasingly important issue in China’s individual income tax—the taxation of capital gains. Though the 2018 Individual Income Tax Law brought significant changes to the classification of individual …

Masterpiece's Equal Treatment Of The Religious And Expressive Freedoms Under The First Amendment, Hwi Won Kim

Maurer Theses and Dissertations

This thesis aims at examining the validity of free speech claims for religious exemptions on the one hand and reviewing the Masterpiece Court's holdings on the current complex entanglement of religious exemption theories, on the other hand; and finally, it also provides a possible suggestion for co-existing between two constitutional values without an all-or-nothing solution.

As to the free speech argument, the Court would likely decide that a compelled speech argument should succeed if, and only if, the vendor’s good or service is expressive under the Free Speech Clause. For a baker, the Court would protect making a custom cake …

2020 Recognition Ceremony Program

Recognition Ceremony

No abstract provided.

The Violence Of Nosy Questions, Jeannine Bell

Articles by Maurer Faculty

This Essay examines a little-studied aspect of police procedure: police officers’ unfettered power to ask questions of motorists. The questions officers ask after they have stopped a car can run the gamut from questions about the nature of the motorist’s travel plans to nosy personal questions. Such questions are often intrusive, and drivers report feeling degraded by having to answer them. This Essay argues that these questions should be regulated because giving officers complete control over what they ask motorists provides a significant space for racial discrimination in policing, creates resentment, and encourages minorities to distrust the police.

Vol. 58, No. 14 (April 20, 2020)

Indiana Law Annotated

No abstract provided.

First Amendment “Harms”, Stephanie H. Barclay

Indiana Law Journal

What role should harm to third parties play in the government’s ability to protect religious rights? The intuitively appealing “harm” principle has animated new theories advanced by scholars who argue that religious exemptions are indefensible whenever they result in cognizable harm to third parties. This third-party harm theory is gaining traction in some circles, particularly in light of the Supreme Court’s pending cases in Little Sisters of the Poor and Fulton v. City of Philadelphia. While focusing on harm appears at first to provide an appealing, simple, and neutral principle for avoiding other difficult moral questions, the definition of harm …

The Replicability Crisis In Patent Law, Janet Freilich

Indiana Law Journal

There is a “replicability crisis” in the scientific literature. Scientists attempting to redo experiments in reputable, peer-reviewed journals have found that staggering numbers of these experiments—up to 90%—do not work. Patents, like scientific articles, contain experiments. These experiments often form the backbone of the patent and provide crucial support for patentability. Patent examiners use these experiments to evaluate whether the invention works, and thus whether the patent should be granted. The replicability crisis in the scientific literature is therefore of utmost importance to the patent system. Transferring the insights of the replicability crisis to patents begs the question of whether …

The Grip Of Nationalism On Corporate Law, Mariana Pargendler

Indiana Law Journal

Part I provides a brief overview of the relationship between corporate law and nationalism and demonstrates their interaction in the historical experiences of several key jurisdictions. These vignettes are merely illustrative, but they indicate how deep the link between nationalism and corporate law can be. Part II summarizes the evidence on the economic effects of foreign corporate control, showing that it is ultimately inconclusive. Part III explains why corporate law can be an attractive instrument to accomplish nationalist objectives and explores the possible regulatory responses to this phenomenon. Part IV analyzes the implications of these findings for future developments in …

Internet Architecture And Disability, Blake Reid

Indiana Law Journal

The Internet is essential for education, employment, information, and cultural and democratic participation. For tens of millions of people with disabilities in the United States, barriers to accessing the Internet—including the visual presentation of information to people who are blind or visually impaired, the aural presentation of information to people who are deaf or hard of hearing, and the persistence of Internet technology, interfaces, and content without regard to prohibitive cognitive load for people with cognitive and intellectual disabilities—collectively pose one of the most significant civil rights issues of the information age. Yet disability law lacks a comprehensive theoretical approach …

Classifying Systems Of Constitutional Review: A Context-Specific Analysis, Samantha Lalisan

Indiana Journal of Constitutional Design

Modern constitutional drafters and advisors increasingly use judicial review classifications and the current model for classification does not accurately capture constitutional review in Latin America. This paper proposes context-specific classification that can accurately capture constitutional review in the Latin American region. Specifically, this paper argues that the context-specific analysis suggests that the more salient point of classification in Latin America is that of access mechanisms to constitutional courts. As such, the paper proceeds in four parts: Part I examines the traditional model of classification in Europe and focuses on the Spanish and German direct access mechanisms. Part II explores the …

Judicial Independence And The Budget: A Taxonomy Of Judicial Budgeting Mechanisms, Alexander Rosselli

Indiana Journal of Constitutional Design

This Paper addresses three aspects of judicial budgeting. First, it will identify the four broad families of constitutional provisions that consider the judicial budget. While the majority of procedures and requirements that govern judicial budgeting are found in statues, many nations’ constitutions explicitly address judicial salaries. Other constitutions only broadly address judicial budgeting. Second, we will analyze different approaches to judicial councils. Third, this Paper will address several different approaches to the judicial budgeting process. This includes how the judiciary’s budget is proposed, as well as how it is allocated and managed. Finally, this Paper will touch upon the tension …

The Ordinary Diet Of The Law: How To Interpret Public Law 86-272, Darien Shanske, David Gamage

Articles by Maurer Faculty

Indeed, in today’s world, filled with legal complexity, the true test of federalist principle may lie, not in the occasional constitutional effort to trim Congress’ commerce power at its edges, or to protect a State’s treasury from a private damages action, but rather in those many statutory cases where courts interpret the mass of technical detail that is the ordinary diet of the law.

Public Law 86-272 is an important feature of the landscape of both state corporate income taxation and state tax policy more generally. The Multistate Tax Commission is completing an important project on updating the guidance given …

Cares Act Gimmicks: How Not To Give People Money During A Pandemic And What To Do Instead, Pamela Foohey, Dalie Jimenez, Christopher K. Odinet

Articles by Maurer Faculty

The coronavirus pandemic upturned Americans' lives. Within the first few weeks, millions of Americans reported being laid off from their jobs. Other people were working reduced hours or were working remotely from home. Children's daycares and schools closed, and parents were thrown into new roles as educators and full-time babysitters, while, in some instances, also continuing to work full-time jobs. The profound financial effects caused by even a few weeks of the coronavirus' upheaval spurred Congress to pass the CARES Act, which purported to provide economic relief to individuals and businesses.

For individuals, the CARES Act includes five provisions that …

Communication Breakdown: How Courts Do - And Don't - Respond To Statutory Overrides, Deborah A. Widiss

Articles by Maurer Faculty

Earlier commentators, including many well-respected judges, have offered thoughtful suggestions for facilitating communication from courts to Congress about problems in statutes that Congress might want to address. My research explores the opposite question. How effective is communication from Congress back to courts? The answer is: Not very. Even when Congress enacts overrides, courts frequently continue to follow the prior judicial precedent. This is likely due more to information failure than willful disregard of controlling law. Nonetheless, a key aspect of the separation of powers is broken.

My research shows that when the Supreme Court overrules a prior decision, lower courts …

Vol. 58, No. 09 (March 9, 2020)

Indiana Law Annotated

No abstract provided.

Vol. 58, No. 08 (March 2, 2020)

Indiana Law Annotated

No abstract provided.

The Current System Of Resolving Insurance Disputes In Saudi Arabia: Its Weaknesses And Ways Of Developing It, Saleh Alsheha

Maurer Theses and Dissertations

Insurance industry generally revolves around financial risks, and the business of insurance companies is reliant on the resolution of claims that arise from these risks associated with insurance policies. In fact, insurance companies routinely adjust claims and provide indemnities to the insureds or beneficiaries. In some cases, however, the resolution of claims may falter, resulting in disputes that involve conflicting views between the insurer and insured on the eligibility of indemnity. Hence, this requires the existence of an effective and smooth mechanism that guarantees the end of such conflicts and protects the rights of the parties involved in insurance contracts. …

The Legal Feasibility Of Ratification Of The United Nations Convention On Contracts For The International Sale Of Goods (Cisg) By Saudi Arabia: A Comparative Study Between Cisg And Islamic Law, Ibrahim Mansour Alwehaibi

Maurer Theses and Dissertations

This study examines the legal feasibility of ratification of the United Nations Convention on Contracts for International Sale of Goods (CISG) by Saudi Arabia as well other Islamic countries that apply Islamic law (Sharia). To understand the feasibility, this study is divided in three parts. Part One serves as a brief introduction to the CISG and Islamic Law (which is the governing contract law in Saudi Arabia). Part Two provides a comparison between the provisions of the CISG and Islamic Law, assessing whether they conflict or are compatible with one another. It is challenging to examine the entire Convention, so …

Blue Lives & The Permanence Of Racism, India Thusi

Articles by Maurer Faculty

In true dystopian form, the killing of unarmed Black people by the police has sparked a national narrative about the suffering of police officers. “Blue Lives Matter” has become the rallying call for those offended by the suggestion that we should hold police officers accountable for killing unarmed Black people. According to a December 2016 poll, 61% of Americans believed that there was a “war on police,” and 68% of Whites had a favorable view of the police as compared to 40% of Blacks. Lawmakers around the country have been proposing Blue Lives Matter laws that make it a hate …

The International Law Of Rabble Rousing, Asaf Lubin, Hendrick Townley

Articles by Maurer Faculty

This Essay offers an account of rabble-rousing, a novel information warfare operation worthy of its own classification, and explores the extent to which contemporary international law and available technologies are capable of addressing the threat that this tactic poses to public world order.

This Essay proceeds as follows. Part I provides a definition of rabblerousing strategies, highlighting the ways by which they are uniquely defined from other forms of information warfare. It then proceeds to highlight the dangers associated with the practice.

Part II moves to examine whether rabble-rousing can be recognized as an internationally wrongful act under the traditional …

On Beauty And Policing, India Thusi

Articles by Maurer Faculty

“To protect and serve” is the motto of police departments from Los Angeles to Cape Town. When police officers deviate from the twin goals of protection and service, for example by using excessive force or by maintaining hostile relations with the community, scholars recommend more training, more oversight, or more resources in policing. However, police appear to be motivated by a superseding goal in the area of sex work policing. In some places, the policing of sex workers is connected to police officers’ perceptions of beauty, producing a hierarchy of desirable bodies as enforced by those sworn to protect and …

Vol. 58, No. 07 (February 24, 2020)

Indiana Law Annotated

No abstract provided.

Tax Cannibalization By State Corporate Taxes: Policy Implications, Darien Shanske, David Gamage

Articles by Maurer Faculty

The tax cannibalization problem is especially large for state corporate income taxes because state governments piggyback on a deeply flawed federal corporate tax base. In this article, we clarify a point of possible confusion about these issues and then discuss some policy implications.