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The Supreme Court’S Old Habits In A New Era? Native Nations, Statehood, And An Indigenous-Led Future For Natural Resources, Monte Mills

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art I of this essay looks back and, relying on Winans and Winters, illustrates the Court’s longstanding commitment to a recognition of tribally reserved rights while requiring a collaborative approach that acknowledges some state interest and authority. Part II then briefly assesses the modern era of Indigenous leadership in natural resources, reviewing the ways in which Native Nations are implementing a new framework of collaborative stewardship for lands, waters, wildlife, and other ecological systems. Finally, Part III considers how the lessons or impacts of this broader movement might be relevant in future conflicts raising questions of statehood and tribal …

The Equal Protection-Fourth Amendment Shell Game: An Essay On The Limited Reach Of The 2023 Affirmative Action Cases, The Fourth Amendment, And Race Beyond Skin Color, David B. Owens

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In striking down race-conscious admissions at Harvard and the University of North Carolina, the Supreme Court used lofty rhetoric about the importance of ending race discrimination, even calling the command of Equal Protection “universal.” In two ways, this Essay explores the legal and practical limits of the affirmative action cases and illustrates how the Court’s claimed concern about race discrimination rings hollow. First, this Essay discusses state actors permitted to use race in their decision-making: the police. Unlike elite universities whose policies are subject to exacting scrutiny, the Supreme Court permits police to use race when deciding whom to seize …

How Experts View The Legal System's Use Of Scientific Evidence, Shari Seidman Diamond, Richard Lempert

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Legal scholars and courts frequently write about how scientific evidence is vetted and presented in legal proceedings, but the views of experts themselves have received little attention. Our research aims to fill that gap. This paper reports some of what we learned from a series of surveys we conducted, beginning with a survey in 2016 of scientists who had been elected to membership in the American Academy of Arts and Sciences.3 Subsequent surveys were directed to subscribers of the journal Science who identified as scientists and engineers and to self-identified experts who advertised their availability as experts to lawyers or …

Letter From Jeffrey Kadet To The Internal Revenue Service Re: Notice 2025-6, T.D. 10022, Reg-107420-24, Jeffery M. Kadet

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I applaud the thought, care, logic, and thoroughness that are reflected in the recently finalized regulations in T.D. 10022 and the proposed regulation in REG-107420-24. I hope the comments set forth below will be useful to you. I am happy to respond to written questions or to discuss the comments herein by phone. If it is decided to hold public hearings and it is possible to provide testimony remotely by phone or electronic medium, then I request that I be allowed to present and discuss some of the matters raised within this submission.

In the following pages, I have provided …

Letter From Jeffrey Kadet To The Internal Revenue Service Re: Notice 2025-19, 2025-2026 Priority Guidance Plan, Jeffery M. Kadet

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Based on my working experience with numerous clients that spanned over thirty years and my studies over the past twenty-three years both as an academic and in connection with my published articles and governmental submissions, I have identified a number of projects that should be considered a high priority for the Treasury and the IRS. These projects, which are attached as appendices to this letter, cover a number of areas. Importantly, I have not been a paid advisor for over a decade and a half. As such, my recommendations are free of any influence from potentially affected taxpayers. I do …

The Ai Input Class: Constitutional Urgency And Fair Licensing In Ai Copyright Class Actions, Xuan-Thao Nguyen, Elizabeth G. Porter

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The humanities have long been under attack; now Big Tech is eating them for breakfast. Artificial Intelligence is undermining the cultural and constitutional values of human creativity; it is also threatening the livelihoods of the creative working class. Because neither Congress nor regulators can keep pace with AI’s pace of change, class actions have stepped into the breach. In the first wave of such litigation, authors and artists in courts on both coasts claim that AI companies violate intellectual property law when they “train” their systems on copyrighted works.

This Article analyzes what we call “input” AI claims—that is, proposed …

Refractive Error And Axial Length (Real) Study: Feasibility Of A Population Study In The United States, Sarah E. Singh Dr, Lisa A. Ostrin, Kristen Kerber Dr, Concepcion Cayle, Celia Gong Dr, Lal Barsha Dr, Ian Flitcroft, Síofra Harrington, James Loughman, Kathryn Saunders Prof, Fuensanta Vera-Diaz Dr

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Myopia is the most common eye disease and a leading cause of blindness. A contemporary, large, and ethnically and geographically diverse study of ocular biometry and refractive error in children in the United States is needed to help better describe differences between myopic and nonmyopic eyes.

This is an initial cross-sectional report from the Refractive Error and Axial Length Growth Curve Study that includes ocular component data as a function of age, gender, and geographic location. This feasibility report will inform a planned larger longitudinal ocular growth study in children in the United States.

Cross-sectional data on children, ages 3 …

Why Did The Irs Restart Transfer Pricing Litigation?, Reuven S. Avi-Yonah

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In his excellent recent article on Coca-Cola’s appeal of its transfer pricing defeat in the Tax Court, Tax Notes contributing editor Ryan Finley explains that Coca-Cola’s main argument is based on the idea that “the IRS led the company into an ambush.” In 1996 the IRS entered into a closing agreement with Coca-Cola that provided that for the 1987 through 1995 tax years, the division of profits between Coca-Cola and its foreign “supply points” (the subsidiaries responsible for mixing the secret formula) would be based on a 10 percent return to the subsidiary and that any profit above that would …

Exploring Deaf And Hard Of Hearing Peoples' Perspectives On Tasks In Augmented Reality: Interacting With 3d Objects And Instructional Comprehension, Sanzida Mojib Luna, Jiangnan Xu, Garreth W. Tigwell, Nicolas Lalone, Michael Saker, Alan Chamberlain, David I. Schwartz, Konstantinos Papangelis

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Tasks in augmented reality (AR), such as 3D interaction and instructional comprehension, are often designed for users with uniform sensory abilities. Such an approach, however, can overlook the more nuanced needs of Deaf and Hard of Hearing (DHH) users who might have reduced auditory perception. To better understand these challenges, our study utilized the single-player AR game Angry Birds AR as a probe to explore how 11 DHH participants and 15 hearing participants experienced AR interactions. Our findings highlight that DHH users prefer interaction based on context, effective haptic cues, audio cue substitutes, and clear instructional design. We, therefore, propose …

The Return Of Private Law, Anthony J. Sebok

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Recent events offer a grim picture of the future of public law. In particular, President Trump’s assault on the administrative state seems destined to hamper the ability of agencies to protect the public in familiar areas such as drug safety, auto safety, environmental protection, and consumer protection.

Democracy’S Distrust: The Supreme Court’S Anti-Voter Decisions As A Threat To Democracy, Gilda R. Daniels

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This Essay explores perceived biases within recent Supreme Court decisions affecting voting access and their implications for American democracy. The Supreme Court plays a pivotal role in enforcing democratic principles. This Essay examines historical and contemporary examples of judicial decisions that have privileged powerful political candidates and legislatures to the detriment of voters. As a lens for assessing these decisions, the Essay introduces a conceptual dichotomy between candidate-centered and voter-centered perspectives. The Essay argues that the Court’s prioritization of the former perspective has forced citizens to bear the burden of antidemocratic decisions, which in turn has led to widespread distrust …

Should The States Return To Worldwide Combined Reporting?, Reuven S. Avi-Yonah

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On February 20 the Institute on Taxation and Economic Policy (ITEP) released a report on the revenue implications of states adopting worldwide combined reporting (WWCR). WWCR refers to a method of taxation that several states (for example, California) applied from the 1970s to the 1990s. Under WWCR, the state takes the entire worldwide profit of a multinational operating in the state and multiplies it by a formula that traditionally combines payroll, tangible assets, and sales in the state divided by worldwide payroll, assets, and sales. The result is the amount of profit taxable in that state.

Nevadaware Divergence In Corporate Law, Wendy G. Couture

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The differences between Nevada and Delaware corporate law - which I call "Nevadaware divergence" - are the subject of media attention, scholarly critique, and current litigation. Nevada corporate law has a reputation as being a no-liability Zone where officers and directors are free to defraud stockholders without consequences. My goal in this article is to inform a more fulsome understanding of Nevada corporate law, both substantively and theoretically, as compared to Delaware corporate law). Starting with the premise that Nevada corporate law is more nuanced than common wisdom suggests, I highlight Nevadaware divergence - not only about substantive corporate law-but …

Biglaw's Race Problem, Angela Onwuachi-Willig, Anthony V. Alfieri

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Ever since the 1970s when BigLaw firms began to hire Black lawyers into their associate ranks, these firms have wrestled with problems in both recruiting and retaining Black associates. During the ensuing decades, BigLaw firms have minimally increased the low numbers of Black attorneys who have become partners, particularly equity partners, within their organizations. Numerous scholars have explored how racial bias and discrimination, both within BigLaw firms and greater society, have contributed to such failures in the recruitment, retention, and promotion of Black lawyers. In his new book The Black Ceiling: How Race Still Matters in the Elite Workplace, Professor …

Lessons For The Trump Administration From The Biden U.S. National Strategy To Counter Antisemitism, Lili Levi

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In May 2023, the Biden Administration issued the first-ever U.S. National Strategy to Counter Antisemitism [hereinafter National Strategy] with a goal of hindering further normalization of antisemitism by increasing public awareness of antisemitism and highlighting positive Jewish contributions to America. Recent events, however-particularly the social and political upheaval over protests of the war in Gaza-have led to public contestation over Israel, increased instances of antisemitism, and the partisan politicization of Jewish issues. Now, the Trump Administration explicitly purports to fight antisemitism by widespread attacks on universities over antisemitism on campus. Does this mean that the National Strategy has become anachronistic, …

Springboard To Article V (Or Electoral Democracy And The End Of Constitutional Amendment In The Nation And States), Wilfred U. Codrington Iii

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Drafted in exceedingly sparing terms and notoriously difficult to amend, the U S. Constitution is falling short in one of the most important functions of a government charter: establishing and maintaining a fair and just electoral framework-marked by rules that promote the values of equality, participation, competition, and transparency in elections. That is, the Constitution increasingly fails to preserve electoral democracy even as the nation's systems for voting and elections are plagued by a cascade of problems. State constitutions, though not uniform, are uniformly easier to amend than the national charter and tend to be better stewards of electoral democracy. …

The Editorial Board's Stories Of War And Recovery, Rachelle Navarro, Edna Epstein, Kristin Bender, Leonard Niehoff, Rahul Agarwal, Dennis Raglin, Margaret Mckeown

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What follows are real-world experiences my fellow editors at Litigation journal shared with me. As much as misery loves company, we litigators love war stories more and, boy, do we have some! They show us that, when faced with unexpected catastrophes, we have only one option: Get to work. Do the math. Solve the problem. And then solve the next one.

Is The Utpr Extraterritorial Or Discriminatory?, Reuven S. Avi-Yonah

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On January 20 President Trump issued two executive orders on international tax. The first order rejected the OECD’s two-pillar project, stating: The OECD Global Tax Deal supported under the prior administration not only allows extraterritorial jurisdiction over American income but also limits our Nation’s ability to enact tax policies that serve the interests of American businesses and workers. Because of the Global Tax Deal and other discriminatory foreign tax practices, American companies may face retaliatory international tax regimes if the United States does not comply with foreign tax policy objectives. This memorandum recaptures our Nation’s sovereignty and economic competitiveness by …

Defining Demand - The Suitability Of Sensor-Based Demand-Controlled Ventilation Within Deep Energy Retrofit Dwellings, Seamus Harrington, Mark Mulville

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This paper reviews a Sensor-Based Demand-Controlled Ventilation (SBDCV) system which seeks to provide fresh air for breathing and to dilute and exhaust pollutants and odours. Previous studies have demonstrated that the constant pressure system increases ventilation extract and inflow based on relative humidity levels and/or presence detection and works on the assumption that the level of ventilation provided is sufficient to control the concentration of all indoor air pollutants, including those that are not occupant generated. This paper presents the results obtained from monitoring the indoor air quality of eight dwellings that had undergone a fabric-first deep energy retrofit and …

Tax Experience Isn’T Everything: A Tale Of Two Justices., Reuven S. Avi-Yonah

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Any student of federal income taxation is familiar with a series of important Supreme Court tax decisions written by Justice Harry Blackmun (associate justice, 1970-1994). They would also know of three important decisions written by his contemporary, Justice Thurgood Marshall (associate justice, 1967-1991). It is interesting to compare the two, because Blackmun was the only recent justice with extensive tax practice experience, whereas Marshall had none. Yet, most of Blackmun’s tax opinions were wrong while Marshall’s opinions were right.

Us V. Rahimi, Originalism's Loaded Weapon, And The Lost Boys Of The Supreme Court, Mary Anne Franks

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No abstract provided.

Rivers V. Guerrero, Meagan R. Hurley

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Danny Rivers sought federal habeas relief, arguing that his trial counsel was ineffective. Rivers’s petition was denied, but while his initial habeas appeal was pending, he initiated a second filing to include new information that his prior counsel failed to utilize in an exculpatory report supporting his innocence. Applying 28 U.S.C. § 2244(b)(2), the district court determined it was “without jurisdiction to entertain” the new evidence because Rivers’s filing was a “second or successive” petition. The Fifth Circuit of Appeals agreed.

Waste, Property, And Useless Things, Meredith Render

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How should the law respond to intentionally useless objects that are constructed from scarce materials and thrust into an overcrowded world?

Approximately sixty million tons of electronic waste, or "e-waste" -for example, discarded iPhones, refrigerators, desktop computers -is produced each year. This annual pile of electronic rubbish represents sixty-two billion dollars' worth of tangible raw materials (such as gold and other scarce metals) that has been rendered useless. In addition to wasting raw materials, e-waste clogs our landfills, poisons the groundwater, and taxes our capacity to store it. Worst of all, much of this waste is intentionally created …

Deputization And Privileged White Violence, Ekow N. Yankah

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A number of high-profile and racially charged killings, such as Trayvon Martin’s, Kenneth Herring’s, Ahmaud Arbery’s, and Jordan Neely’s, have been at the hands of civilians declaring themselves the law. These deaths stemmed from a phenomenon best described as “deputization.” Deputization describes a latent legal power that has empowered White people throughout American history to claim authority to enforce the law, as they see it, upon racial minorities generally and Black people in particular. This power turned the ancient common law duty to police all felons in England into a specific American common law duty to police Blacks. From the …

Next Generation Legal Researchers: Implementing Critical Information Literacy Through The Acrl Framework To Ensure Student Success On The Nextgen Bar Exam, Laura Wilcoxon

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Students who began law school in the fall of 2023 could be among the first to encounter the NextGen Bar Exam. Examinees will now be required to demonstrate proficiency in legal research to become practicing attorneys. This change provides an opportunity to evaluate the pedagogy employed to prepare students for the bar exam and beyond. Incorporating critical information literacy into the legal research curriculum will enable students to master the analytic and metacognitive skills that will be tested on the NextGen Bar Exam. Law librarians can incorporate these skills into legal research instruction by implementing the Framework for Information Literacy …

Should Country-By-Country Reporting Be Public?, Reuven S. Avi-Yonah

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Under action 13 of the base erosion and profit shifting project, large multinational enterprises are obligated to file country-by-country reports with tax authorities. As of April 2024, over 80 countries have adopted a multilateral agreement on exchanging CbC reports. The United States has not adopted the multilateral agreement, but regulations require U.S.-based MNEs to file these reports with the IRS, which can then exchange them with other countries under tax treaties.

A Comparison Study Of Senior And Junior Deck Officers’ Interpretations Of The International Regulations For The Prevention Of Collisions At Sea, Ian Heffernan, Tom O'Mahony

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The International Regulations for the Prevention of Collisions at Sea (IRPCS) provide a comprehensive set of instructions for watchkeeping officers to follow and prevent collisions at sea. This study compares how six newly qualified deck officers and six Master Mariners, who were all trained at the same college, applied the IRPCS. Individual, semi-structured interviews were used to uncover how the 12 participants applied and interpreted the rules for three authentic scenarios. Phenomenography was used to capture the qualitatively different means by which participants interpreted the IRPCS. For basic collision avoidance situations, the results indicated little difference between the cohorts' ability …

Strategically Restated Defaults, Wendy G. Couture

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Business and commercial statutes are composed almost entirely of default rules, which parties may override via agreement or adopt via silence. Drafters of these statutes, and theories about the substance of default rules, assume that parties indeed adopt statutory default rules via silence. Against this backdrop, this Article examines unexpected behavior by parties to business and commercial agreements: parties often restate statutory default rules in their agreements rather than adopting those rules via silence. Based on a review of actual limited partnership agreements and security agreements, this Article identifies five unique species of restatement-bald, tweak, refill, baseline, and context restatements-and …

Institutionalized Ostracism, Danieli Evans

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Belonging is a fundamental need, like food or water. Hundreds of social psychology studies find that people who are ostracized (excluded, rejected, or ignored) experience severe pain and suffering. Ostracism threatens basic needs, triggers the same neurocognitive processing system as physical pain, and impairs functioning. Furthermore, ostracized people may cope in ways that beget “deviant” labeling and further ostracism.

Belonging and ostracism are prevalent themes in social psychology research, but these constructs have received relatively little attention in law. This Article begins to explore the implications of this research for law. I make three contributions: First, I name and describe …

Rahimi And The Future Of (The Rest Of) The Protection Order Prohibition, Bonnie Carlson

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In the summer of 2024, the Supreme Court considered United States v. Rahimi. Scholars and lawyers watched with bated breath to see how the court would interpret and apply the foundation-shifting Second Amendment test it established in New York State Rifle & Pistol Ass’n v. Bruen two years earlier. Ultimately, the Court upheld the federal law which temporarily bans some protection order respondents from possessing firearms. But the Court provided little in the way of additional guidance that lower courts desperately needed as evidenced by the disparate outcomes on gun cases nationwide following Bruen. Rather, the Court opted for a …