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Due Diligence In International Tax Law, Reuven S. Avi-Yonah, Gianluca Mazzoni

Book Chapters

This chapter describes how the due diligence standard was developed in international tax law before 2008, and then how the standard was greatly modified after the financial crisis, the enactment of the Foreign Account Tax Compliance Act of 2010 (FATCA), and the subsequent development of the Common Reporting Standards (CRS). The chapter outlines how the due diligence concept is applied to private actors, especially financial institutions, to prevent tax evasion. It ends with some conclusions including that while due diligence in international tax law is currently embodied in a specific set of rules, there remains an absence of an overarching …

Clerking For Roger J. Traynor, Roland E. Brandel, James E. Krier

Book Chapters

Justice Roger J. Traynor was born in Utah in 19001 the son of a miner and drayman. He left after high school to undertake undergraduate and graduate studies at the University of California, Berkeley, eventually earning (simultaneously) a Ph.D. in political science and a law degree from Boalt Hall, the university's law school. He practiced law for just a few months, then returned to the university to teach in its political science department. A year later, in 19301 he joined the law faculty, where he worked until his appointment to the California Supreme Court in 1940. He became chief justice …

Coca Cola: A Decisive Irs Transfer Pricing Victory, At Last, Reuven S. Avi-Yonah, Gianluca Mazzoni

Law & Economics Working Papers

Coca Cola v. Commissioner (Tax Court, Nov. 18, 2020) is the first decisive IRS victory in a major transfer pricing case since 1979. If the outcome is not reversed on appeal, this will mark an important shift in transfer pricing litigation in the US, and perhaps indicate that the IRS could win some of the other major pending cases, like the one against Facebook.

Is Gilti Constitutional?, Reuven S. Avi-Yonah

Articles

In this article, Avi-Yonah argues that the global intangible low-taxed income regime may be an unconstitutional attempt to tax the foreign-source income of foreign entities, and he offers an alternative.

Front Matter, Michigan Journal Of Gender & Law

Michigan Journal of Gender & Law

Front Matter for Volume 28, Issue 1 of Michigan Journal of Gender & Law

“Champion Man-Hater Of All Time”: Feminism, Insanity, And Property Rights In 1940s America, Magdalene Zier

Michigan Journal of Gender & Law

Legions of law students in property or trusts and estates courses have studied the will dispute, In re Strittmater’s Estate. The cases, casebooks, and treatises that cite Strittmater present the 1947 decision from New Jersey’s highest court as a model of the “insane delusion” doctrine. Readers learn that snubbed relatives successfully invalidated Louisa Strittmater’s will, which left her estate to the Equal Rights Amendment campaign, by convincing the court that her radical views on gender equality amounted to insanity and, thus, testamentary incapacity. By failing to provide any commentary or context on this overt sexism, these sources affirm the …

The Wolf We Feed: Democracy, Caste, And Legitimacy, Benjamin Justice, Tracey L. Meares

Michigan Law Review Online

Procedure is central to American public legal discourse. From the soaring rhetoric of the Declaration of Independence to the Due Process Clause of the Fourteenth Amendment, the American legal tradition rests on the principle that law must be both derived and applied according to fair process. Consider that in the 2020 election the Trump Administration resorted to fervent and false allegations of widespread voter fraud—that the election process was fundamentally unfair—in order to weaponize Republican voters’ ostensible commitments to fairness against what was, objectively, one of the least procedurally unfair elections in history. Yet the four-year period of the Trump …

Clashing Canons And The Contract Clause, T. Leigh Anenson, Jennifer K. Gershberg

University of Michigan Journal of Law Reform

This Article is the first in-depth examination of substantive canons that judges use to interpret public pension legislation under the Contract Clause of the U.S. Constitution and state constitutions. The resolution of constitutional controversies concerning pension reform will have a profound influence on government employment. The assessment begins with a general discussion of these interpretive techniques before turning to their operation in public pension litigation. It concentrates on three clashing canons: the remedial (purpose) canon, the “no contract” canon (otherwise known as the unmistakability doctrine), and the constitutional avoidance canon. For these three canons routinely employed in pension law, there …

Workers' Comp And Contagious Disease: History And Future, Kate E. Britt

Law Librarian Scholarship

Modern workers’ compensation schemes set out to provide financial relief to employees who contract an occupational disease during employment, like miners contracting black lung or contractors exposed to asbestos. Certain professions are understood to stand a particular risk of exposure to contagious diseases. Health-care workers interact with persons carrying contagious disease as a matter of course. What workers’ compensation does not cover are diseases which are so prevalent they are considered an “ordinary disease of life.” These diseases, like the common cold, influenza, or pneumonia, could be contracted by persons regardless of their profession, and workers’ compensation acts generally limit …

Researching Education Law, Keith Lacy

Law Librarian Scholarship

Education law in the United States is heavily informed by principles of federalism. However, the importance of education nationally has increasingly led to the federal government’s involvement—particularly in respect to funding education and enforcing civil rights. The following is a brief description of the structure of education law in the United States, highlighting resources that may be helpful when researching legal issues involving teachers, students, and schools.

A Feminist Economic Perspective On Contract Law: Promissory Estoppel As An Example, Orit Gan

Michigan Journal of Gender & Law

Economic analysis is a highly influential theoretical approach to contract law. At the same time, feminist analysis of contract law offers an important critical approach to the field. However, feminist economics, a prominent alternative approach to mainstream neo-classical economics drawing from both economic theory and feminist theory, has only been applied scarcely and sporadically to contract law. This Article seeks to bridge this gap and to apply the key features of feminist economics to an analysis of the doctrine of promissory estoppel. This Article uses promissory estoppel as an example to demonstrate a feminist economic analysis of contract law.

A Podcast Of One’S Own, Leah M. Litman, Melissa Murray, Katherine Shaw

Michigan Journal of Gender & Law

In this short Essay, we discuss the lack of racial and gender diversity on and around the Supreme Court. As we note, the ranks of the Court’s Justices and its clerks historically have been dominated by white men. But this homogeneity is not limited to the Court’s members or its clerks. As we explain, much of the Court’s broader ecosystem suffers from this same lack of diversity. The advocates who argue before the Court are primarily white men; the experts cited in the Court’s opinions, as well as the experts on whom Court commentators rely in interpreting those opinions, are …

2021 Winter Class Schedule, University Of Michigan Law School

Class Schedules

Class schedule for the 2021 Winter semester at the University of Michigan Law School

Reasonableness In Hostile Work Environment Cases After #Metoo, Danielle A. Bernstein

Michigan Journal of Gender & Law

The #MeToo movement, a global social response to sexual harassment in the workplace, has turned the traditional approach to sexual harassment on its head. Instead of shielding perpetrators and discrediting survivors, employers, the media, and the public have begun to shift from presuming the credibility of the perpetrator to presuming the credibility of the survivor. But this upending of the status quo has occurred almost entirely in the social sphere—and the legal system, where survivors of workplace sexual harassment can seek remedies for the abuse they have suffered, is proving much slower to adapt.

While our social presumptions are flipping …

Drone Law: Legal Research Basics And Sources, Kincaid C. Brown

Law Librarian Scholarship

Drones, legally called “unmanned aircraft systems” (UAS), are primarily governed by federal law with some aspects overseen by state and local law. The system includes the aircraft itself and its associated elements for communication and operation. This article discusses the basic framework of federal and Michigan law governing UAS.

The Values Of The Administrative State: A Reply To Seidenfeld, Blake Emerson

Michigan Law Review Online

I appreciate the opportunity to continue the conversation on democracy in the administrative state that I hoped The Public’s Law would inspire. In his review, Mark Seidenfeld critiques some of the book’s legal reform proposals. He argues that I am too optimistic about the general public’s ability to participate in the administrative process, about administrators’ competence to reason about social values, and about courts’ capacity to police such reasoning.

The aspects of my argument Seidenfeld criticizes come at the conclusion of the book’s broader study of the intellectual and institutional history of the administrative state. This history is meant to …

Beyond Qualified Immunity, Fred O. Smith Jr.

Michigan Law Review Online

I never watched the video. The descriptions themselves have always felt like enough. Traumatizing enough. Invasive enough. George Floyd, father of two, laying on the ground, as an unfazed officer kneeled on his neck for at least eight minutes and forty-six seconds. He pleaded for his life and cried out to his deceased mother until he met his inevitable death. His name should be said for the record before saying almost anything else. The recording of the chilling final minutes of his life is, in all probability, one of the impetuses for this multi-journal Reckoning and Reform Symposium.

Civil Rights, Access To Counsel, And Injunctive Class Actions In The United States, Maureen Carroll

Book Chapters

According to a familiar story about class actions in the United States, aggregation promotes access to counsel by increasing the amount of money from which counsel fees can be taken. Courts usually award class counsel a percentage of the monetary recovery obtained on behalf of the class, and class treatment can turn a $30 case into a $3 million case. But what about class actions that do not involve monetary relief at all? Some civil rights plaintiffs seek to stop a violation, rather than to obtain compensation for past harm, and therefore choose to pursue only an injunction or declaratory …

Christianity And Antitrust, Kenneth G. Elzinga, Daniel Crane

Book Chapters

The purpose of this chapter is to consider whether the Christian faith has a nexus with the institution of antitrust. It turns out it doesn’t – and it does. For example, Christianity cannot explain why the Herfindahl–Hirschman Index is superior to the four-firm concentration ratio as a measure of industry concentration. Economics can. On the other hand, economics cannot explain why the per se rule against price-fixing is morally appropriate. The Bible can.

Offenders And Sorn Laws, Amanda Agan, J.J. Prescott

Book Chapters

Chapter 7 describes what we know about the effects of SORN laws on criminal behavior. A coherent story emerges from this review: there is virtually no evidence that SORN laws reduce recidivism or otherwise increase public safety. The chapter first delineates the various ways registration and notification alter the legal environment not only for registrants but also for nonregistrants, the public, and law enforcement. There are many channels through which SORN laws might impact the frequency of sex offenses, including some that would produce an increase in overall offending. The chapter assesses these possibilities in light of a large body …

The Architecture Of The Un Refugee Convention And Protocol, James C. Hathaway

Book Chapters

The heart of international refugee law is the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees, with some three-quarters of the world’s governments having bound themselves to respect the standards set by these treaties. Contracting States may—and often have—accepted additional refugee protection responsibilities under national or regional law. But, as a matter of international law, these additional duties complement rather than supplant the fundamental commitments made under the Refugee Convention and Protocol.

The architecture of this core normative standard is in many ways unusual. As a formal matter, it derives …

Principles For Policymakers, James R. Hines Jr.

Book Chapters

Multinational corporations are global goliaths, but they have not conquered the world, nor are they responsible for every economic ill, as is sometimes alleged. These firms contribute to global prosperity by improving productivity and efficiency, innovating, and creating jobs-mostly good jobs-in both home and host countries. Governments lavish attention on multinational corporations, seeking the good that accompanies their investments even as policymakers worry about the influence multinational firms have on the local environment, social conditions, and politics. In this regard, governments face the tradeoffs that commonly afflict economic policymaking. Efforts to control the actions of multinational firms typically come at …

Globalization, Tax Competition And The Fiscal Crisis Of The Welfare State: A Twentieth Anniversary Retrospective, Reuven S. Avi-Yonah

Book Chapters

I first met David Rosenbloom in 1993. I had just been hired lo leach international tax at Harvard Law School, and was replacing David, who had taught there for many years. I felt a bit apprehensive approaching such a giant in the field, especially since I actually had little experience in international tax and none in lax treaties. But David was extraordinarily generous. Not only did he give me his materials (some of which made it into my casebook, now co-authored with Yariv Brauner and David's student Diane Ring) but he also agreed to come teach treaties as a guest …

Persuasion About/Without International Law: The Case Of Cybersecurity Norms, Steven R. Ratner

Book Chapters

International law on cybersecurity is characterized by at best a thin consensus on the existence of rules, their meaning, and the desirability and content of new rules. This legal landscape results in a unique pattern of argumentation and persuasion by states and non-state actors both in advocating for a regulatory scheme for cyber activity and in reacting to malicious cyber acts. By examining argumentation in the absence of a generally agreed legal framework, this chapter seeks to provide new insights into the motivations for and effects of international legal argumentation in shaping debates and behavior. After describing the legal landscape …

From The Spectacular To The Everyday: International Law, Violence And The Agenda For Women, Peace And Security, Christine M. Chinkin

Book Chapters

This article looks at the conceptions of violence within WPS and thus within these diverse international legal regimes as they relate to women and girls. It first examines the regulation of inter-state violence, both legal recourse to the use of force and constraints upon the means and methods of warfare. It then outlines how state obligations to prevent and punish violence against women were brought into human rights law in the early 1990s, primarily by the UN Committee on the Elimination of Discrimination against Women (CEDAW Committee). The WPS resolutions are then summarised, focusing on provisions for the prevention of …

Alternative Trading Platforms In The United States: Incentives For Innovation In The Us Stock Market, Gabriel V. Rauterberg

Book Chapters

Is something wrong with the structure of our stock market? Recent scholarship faults the equity market for its lack of innovation. In particular, commentators stringently criticize the continuous nature of modern trading for baking in a wasteful arms race for speed among high-frequency traders. Under their current structure, stock exchanges process incoming instructions to trade in the order they arrive and as quickly as possible, which means in millionths of a second or less. The result is a race for technological speed because market participants can earn profits from being the first to trade on new information, even when that …

The Role Of Trust Law Principles In Defining Public Trust Duties For Natural Resources, John C. Dernbach

University of Michigan Journal of Law Reform

Public trusts for natural resources incorporate both limits and duties on governments in their stewardship of those natural resources. They exist in every state in the United States—in constitutional provisions, statutes, and in common law. Yet the law recognizing public trusts for natural resources may contain only the most basic provisions—often just a sentence or two. The purpose and terms of these public trusts certainly answer some questions about the limits and duties of trustees, but they do not answer all questions. When questions arise that the body of law creating or recognizing a public trust for natural resources does …

Smart Cars, Telematics And Repair, Leah Chan Grinvald, Ofer Tur-Sinai

University of Michigan Journal of Law Reform

Recent years have seen a surge in the use of automotive telematics. Telematics is the integration of telecommunications and informatics technologies. Using telematics in cars enables transmission of data communications between the car and other systems or devices. This opens up a wide range of possibilities, including the prospect of conducting remote diagnostics based on real-time access to the vehicle. Yet, as with any new technology, alongside its potential benefits, the use of automotive telematics could also have potential downsides. This Article explores the significant negative impact that the growing reliance on telematics systems could have on competition in the …

Front Matter, Journal Of Law Reform

University of Michigan Journal of Law Reform

Front matter for Volume 54, Issue 1 of the Journal of Law Reform.

Sovereign Immunity And Interstate Government Tort, Louise Weinberg

University of Michigan Journal of Law Reform

This paper argues that the Supreme Court made a serious mistake last term, when, in a case of interstate government tort, it tore up useful options that should be available to each state for the rare cases in which they would be of service. In seeking to insulate a state from liability when its employee intrudes on a sister state’s territory and causes injury there, the Court stripped every state of power, in cases of interstate government tort, to try injuries occurring on its own territory to its own residents—an unprecedented disregard of a state’s acknowledged traditional interests. Indeed, the …