Digital Commons Network^™

The Administrative Procedure Act Problem Reconsidered, Reuven S. Avi-Yonah

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Tax Notes contributing editor Ryan Finley’s excellent article on the 3M case1 and the Administrative Procedure Act provides an opportunity to reconsider the damage done to tax law by taxpayers constantly invoking the APA to invalidate regulations or IRS notices.

Digital Barter Taxes: A Legal Defense, Young Ran (Christine) Kim, Darien Shanske

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This short essay, aimed at state legislators, defends digital barter taxes from the most common legal objections.

Digital Barter Taxes Are Good Tax Policy, Young Ran (Christine) Kim, Darien Shanske

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This short essay, aimed at state legislators, argues that digital barter taxes are good tax policy.

Now You Have It, Now You Don’T: Taxing Crypto, Part 2, Reuven S. Avi-Yonah

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In “Coinbase: Are Cryptoassets Securities?” Tax Notes contributing editor Lee A. Sheppard highlights a recent district court decision indicating that some forms of cryptoassets are securities for securities law purposes and therefore fall under the jurisdiction of the SEC:

There are potential tax ramifications. Some, indeed many, cryptoassets could be securities under the securities law. That means that losses can’t be recognized on wash sales (section 1091). The IRS should issue a notice stating that many cryptoassets other than bitcoin are securities, so losses on wash sales can’t be recognized. A notice would not be a heavy lift. The taxpayers …

The Broader Lessons Of Privacy Law, Salome Viljoen

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This Article explores the trend of privacy—and what kind of techno-social or legal effect ought to count as a “privacy harm”—expanding to encompass a growing set of social factors. This big-tent approach to privacy has several virtues. However, it also comes with a few costs. While others have explored the conceptual and doctrinal tradeoffs that an expansive approach to privacy may entail, this Article focuses on a secondary effect the trend toward expansiveness has had on the relationship between privacy scholarship and legal scholarship more broadly. This Article suggests that the internal expansiveness of privacy means that insights developed within …

Now You Have It, Now You Don’T: Taxing Crypto, Part 1, Reuven S. Avi-Yonah

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The latest rise in the value of bitcoin has rekindled the debate on whether cryptocurrencies perform a useful function. For example, a recent article in the Financial Times argued: Have we learnt the lessons from the disastrous 2022 crash in digital assets? To judge from recent action in the crypto market, the answer appears to be no. Since hitting bottom after FTX collapsed into bankruptcy with a $9bn-ish hole in its balance sheet in November 2022, crypto market values have roughly tripled. Bitcoin’s price rose above $70,000 this week to touch record highs. A new wave of enthusiasm is growing, …

Raising The Bar: The Nextgen Bar Exam And Contract Drafting, Susan M. Chesler, Karen J. Sneddon

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Set to debut in July 2026, the NextGen Bar Exam will test a broad range of foundational lawyering skills needed in today’s practice of law, including contract interpretation, drafting, and revising. According to the National Conference of Bar Examiners (“NCBE”), this exam is designed “to balance the skills and knowledge needed in litigation and transactional legal practice.” More specifically, the foundational skills that will be tested include drafting and revising contract provisions consistent with the facts, the law, and the client’s objectives, interests, and constraints. The NCBE has indicated that the examinees’ knowledge of the doctrinal subject matter topics, like …

Free Speech Originalism: Unconstraining In Theory And Opportunistic In Practice, Caroline Mala Corbin

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Courts should not apply originalism in freedom of expression cases. Originalists claim that originalism prevents judges from imposing their own views. It does not-not in theory and not in practice. Instead, as the treatment of hate speech bans suggests, it is not principles but outcomes that determine whether and which version of originalism is used. Moreover, a true originalist First Amendment would likely lead to impoverished free speech protections.

Part I provides background on original public meaning originalism, the iteration of originalism currently favored by scholars. It also explains how the theory falls short of its original promise of limiting …

Water Management And Conservation In India Fostering Water Justice: Arguing For Adopting Just Sustainability In Water Governance, Gayathri D Naik Dr, Sanjay Shenoi P

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The water sector is characterised by everyday water injustices where factors like social discrimination, economic disparities, and political preferences influence the determination of water resource access, allocation, and management. The increasing anthropogenic impacts on water resources and consequent threats to sustainability add to the water injustices, often impacting the poorer, socially downtrodden communities that bear the brunt of water scarcity and cannot afford alternatives. The current water governance patterns, prioritising equality over equity, fail to address the issues of water injustices created by social, political, and economic factors in water management and sideline the ecological impacts on water resources. Moving …

Economic Security And The Separation Of Powers, Kathleen Claussen, Timothy Meyer

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The U.S. Constitution grants Congress the power "[t]o regulate Commerce with foreign Nations," but today the exercise of the foreign commerce power resides primarily with the executive branch. That transfer of control is partly the result of significant delegations of responsibility for managing foreign commerce from Congress to the executive. It is also, however, the result of the securitization of foreign commerce. The executive branch asserts that foreign commerce issues fall under its constitutional powers over foreign affairs, and, thus, that it enjoys authority over foreign commerce that exceeds the scope of congressional delegations.

This Article makes three contributions. First, …

Trade Law Policing On The Factory Floor: Next Generation Agreements And Their Corporate Accountability Tools, Kathleen Claussen

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Trade policymakers' increased attention to sustainability has prompted the development of trade tools focused on corporate accountability within international trade agreements. As evidenced by the creation and use of the United States-Mexico-Canada Agreement's Rapid Response Labor Mechanism, this institutional shift has potent implications for labour rights and environmental protections. This article, which transcribes a lecture delivered at the Lauterpacht Centre in October 2023, scrutinises the turn toward supply-chain policing within international trade law and its institutional, legal, sociological, rhetorical and disciplinary effects.

All Roads Lead To Rome: Combating Impunity For Perpetration Of Slave Trade And Slavery Crimes, Jocelyn Getgen Kestenbaum

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The Republic of Sierra Leone has proposed amendments to the Rome Statute of the International Criminal Court (ICC) to include, inter alia, provisions for the slave trade as a crime against humanity and has recommended that the General Assembly include the slave trade as an enumerated crime in the Draft articles on Prevention and Punishment of Crimes Against Humanity (CAH) (Draft articles). This declaration came nearly five years after Cardozo’s Benjamin B Ferencz Human Rights and Atrocity Prevention Clinic, on behalf of slavery crimes expert Patricia Viseur Sellers, sent commentaries to the United Nations International Law Commission (ILC) to revise …

Redistributing Justice, Benjamin Levin, Kate Levine

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This Essay surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system. Despite progressives’ increasingly prevalent critiques of criminal law, there is hardly a consensus on the left in opposition to the carceral state. Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas— often areas in which defendants are imagined as powerful and victims as particularly vulnerable.

In this Essay, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment—the hope that the criminal system …

Feedback Loops: Upward Appreciation., Patrick Barry

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When was the last time you tried to make your boss feel welcome? Last week? Last month? Never?

How about the last time you tried to make one of your mentors feel welcome? Your mom? Your dad? A particularly helpful pastor, rabbi, imam, or other religious leader?

Subjective Beliefs About Contract Enforceability, J. J. Prescott, Evan Starr

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This article assesses the content, role, and adaptability of subjective beliefs about contract enforceability in the context of postemployment covenants not to compete (noncompetes). We demonstrate that employees tend to believe that even clearly unenforceable noncompetes are enforceable, including their own. We provide evidence for both supply- and demand-side stories that explain employees’ persistently inaccurate beliefs. Moreover, we show that believing that unenforceable noncompetes are enforceable likely causes employees to forgo better job opportunities and to perceive that their employer is more likely to sue them if they choose to compete. Finally, we use an information experiment to inform employees …

The Myth Of Slavery Abolition, Jocelyn Getgen Kestenbaum

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In many countries today, slavery and the slave trade continue with impunity. International human rights law prohibits both abuses, but states are rarely held accountable and people who are enslaved or slave traded rarely receive redress. This Article offers a novel account of why international human rights law advocacy neglects slavery and the slave trade. Specifically, this Article demonstrates that the abolition of the Transatlantic and East African slave trades was achieved through a legal framework that marginalized the human rights of enslaved persons while consolidating empire. In the wake of World War II, prohibitions on slavery and the slave …

Modeling Redistribution Of Nanozeolites In Holographic Recording, Dana Mackey, Jack Lyons Dr, Izabela Naydenova

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Zeolite doped photopolymers have been studied experimentally due to their potential application in the develop- ment of optical sensors. It has been shown that dopant redistribution can be achieved by holographic recording and has a direct influence on the sensitivity of the recorded grating. To achieve better theoretical understanding of these processes, this paper proposes an extended photopolymerization-diffusion mathematical model for describing the dynamics of nanozeolite redistribution during recording in an acrylamide-based photopolymer. Using numerical simulations of this model, we investigate how recording conditions, dopant transport parameters, and initial load affect the refractive index modulation of the resulting photonic structure.

Achille Mbembe, "Brutalism", Atreyee Majumder

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Book Review: Achille Mbembe, Brutalism (Duke University Press 2024)

Back To The Future? Rishi Sunak's Industrial Strategy Save Related Papers Chat With Paper, Richard Woodward, James Silverwood

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Since becoming Prime Minister, Rishi Sunak has been variously described as pursuing a ‘furtive’, ‘surreptitious’ and ‘apologetic’ industrial strategy. Terms such as industrial policy and industrial strategy have been expunged from official speeches and policy documents, yet industrial intervention remains widespread. In adopting this approach, the article argues that Sunak has returned the UK to an industrial policy consensus established under Thatcherism. This consensus places in the foreground pro-market rhetoric and policies suggesting that industrial strategy should be limited to the correction of market failure, while in the background the state actively intervenes to shape the structure of the economy …

Why We Should Stop Talking About Violent Offenders: Storytelling And Decarceration, Mira Edmonds

Articles

The movement to decarcerate risks foundering because of its failure to grapple with so-called violent offenders, who make up nearly half of U.S. prisoners. The treatment of people serving sentences for offenses categorized as violent is a primary reason for the continued problem of mass incarceration, despite widespread awareness of the phenomenon and significant bipartisan interest in its reduction. People convicted of “violent offenses” are serving historically anomalous and excessively long sentences, are generally denied clemency and compassionate release, and are excluded from a wide array of legal reform and policy changes with decarceral aims. Keeping these people in prison …

Should Racially Vulnerable Victims Show Mercy?, Ekow N. Yankah

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On June 17, 2015, twenty-one-year-old Dylann Roof entered the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, sat, and prayed with nine congregants for at least an hour before pulling out a handgun and killing Cynthia Hurd, Susan Jackson, Ethel Lance, DePayne Middleton-Doctor, State Senator Rev. Clementa Pinckney, Tywanza Sanders, Rev. Daniel Simmons, Sharonda Singleton, and Myra Thompson.' He left three survivors, explicitly so they could "tell the story" of his killings. Roof did so for his own demented reasons; his racist rage was laid out publicly in an online manifesto, and he hoped his murders would begin a …

Holographic Multiplexing In A Photopolymerisable Hybrid Sol-Gel, Pamela Stoeva, Tatsiana Mikulchyk, Izabela Naydenova, Kevin Murphy

Articles

Holographic multiplexing techniques enhance functionality and information storage by leveraging the inherent selectivity of holograms. This is crucial for advancing holographic sensors, which excel in simultaneously detecting multiple parameters from a single input signal. This study explores the potential of the recent photopolymerisable hybrid sol-gel (PHSG) material for application in Space sensing systems through the investigation of its holographic angular multiplexing capabilities. For the first time, to the best of our knowledge, we report the successful recording of up to five angularly multiplexed gratings with diffraction efficiencies (DE) ≥ 15% in 187 ± 18 µm PHSG layers. A 3 mW/cm2 …

Beyond The Human: Crossovers For An Onto-Epistemological Bifurcation, Ester Toribio-Roura

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Building upon recent studies in new materialisms and feminist critical posthumanism with a focus on human and more-than-human relationships, this paper examines how the posthuman paradigm, by postulating the queering of identit(ies) via entanglement with the more-than-human (including technology), and by offering a critical examination of diverse modes of existence within a broader ecological context, can foster more inclusive and ethically sound ways of being in the world. Although posthumanism encompasses a wide range of perspectives and theories, including transhumanism, at its core, it challenges traditional notions of humanism, blurring the boundaries between what is human and what is more-than-human, …

Littlejohn’S Unjust Tax Sentence, Reuven S. Avi-Yonah

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On May 1 Charles Littlejohn began serving a five-year prison sentence for unauthorized disclosure of tax information. His crime is described by the Department of Justice as follows: According to court documents, Charles Littlejohn, 38, of Washington, D.C., while working at the IRS as a government contractor, stole tax return information associated with a high-ranking government official (Public Official A). Littlejohn accessed tax returns associated with Public Official A (and related individuals and entities) on an IRS database after using broad search parameters designed to conceal the true purpose of his queries. He then uploaded the tax returns to a …

Early Age Assessment Of A New Course Of Irish Fly Ash As A Cement Replacement, Niall Holmes Dr., Nikki Shaji, Mark Tyrer

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This paper explores the potential of a new source of fly ash, deposited on the site of a coalfired power plant in Ireland dating from 1985 to 1995, as a cement replacement material. A series of X-ray diffraction (XRD) analyses on binder samples with cement replacement levels of 0, 10, 25 and 35% was undertaken to determine the fly ash’s mineralogical composition and to determine its suitability as a supplemental cementitious material (SCM). The XRD results reveal a unique mineral composition with promising characteristics for enhancing the strength and durability of concrete. The experimental results were used to calibrate a …

Should U.S. Tax Law Be Constitutionalized?, Reuven S. Avi-Yonah

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Moore is the first Supreme Court case involving a constitutional challenge to a federal income tax law since Macomber, which was decided more than a century ago. Whatever way the Court rules, other such cases are likely to be brought and some of them may reach the Court. Moore won’t be the last case of its kind.

Medical-Legal Partnerships Reinvigorate Systems Lawyering Using An Upstream Approach, Kate L. Mitchell, Debra Chopp

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The upstream framework presented in public health and medicine considers health problems from a preventive perspective, seeking to understand and address the root causes of poor health. Medical-legal partnerships (MLPs) have demonstrated the value of this upstream framework in the practice of law and engage in upstream lawyering by utilizing systemic advocacy to address root causes of injustices and health inequities. This article explores upstreaming and its use by MLPs in reframing legal practice.

The Case For Targeted Location Incentives, Reuven S. Avi-Yonah

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Both the global intangible low-taxed income provisions of the Tax Cuts and Jobs Act and the substance-based income exclusion of pillar 2 provide incentives to shift real investment to lowtax locations. Under GILTI, a 10 percent return on tangible assets of the subsidiaries of U.S. multinationals (qualified business asset investment) is exempt from tax. Under pillar 2, the top-up tax calculation excludes 10 percent of payroll costs and 8 percent of the carrying value of tangible assets in a jurisdiction.

Gpt Assisted Annotation Of Rhetorical And Linguistic Features For Interpretable Propaganda Technique Detection In News Text., Kyle Hamilton, Bojan Bozic, Luca Longo

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While the use of machine learning for the detection of propaganda techniques in text has garnered considerable attention, most approaches focus on "black-box'' solutions with opaque inner workings. Interpretable approaches provide a solution, however, they depend on careful feature engineering and costly expert annotated data. Additionally, language features specific to propagandistic text are generally the focus of rhetoricians or linguists, and there is no data set labeled with such features suitable for machine learning. This study codifies 22 rhetorical and linguistic features identified in literature related to the language of persuasion for the purpose of annotating an existing data set …

Can Investment Treaties Defeat Pillar 2?, Reuven S. Avi-Yonah

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In their excellent recent Tax Notes International article, “Using Investment Treaties to Prevent Pillar 2’s Revocation of Promised Tax Incentives,” Javier Rubinstein, Lauren Friedman, and Tamsin Parzen make an interesting new argument about the interaction between bilateral investment treaties (BITs) and pillar 2. They argue that an investor benefiting from an existing BIT can rely on it to prevent the imposition of a qualified domestic minimum top-up tax (QDMTT) even without resorting to treaty arbitration. This argument is problematic, however, because it does not fully address the likely reaction of other countries that are not party to the BIT.