Digital Commons Network^™

Problems Of Compliance In Election Law, Lisa Marshall Manheim

Articles

Elections do not operate in perfect compliance with the law. Instead, irregularities are routine and, to some extent, inevitable. The law of elections responds to this tension by recognizing that only some legal irregularities, under only some circumstances, have even the potential to invalidate an electoral process. One manifestation of this response involves variable standards of compliance. Doctrines implicated by these standards recognize that some election rules require only substantial compliance, rather than strict compliance, to be considered fulfilled. These compliance standards serve a vital role in election law regimes across the country. The basic operation of these standards is, …

Factor Substitution Possibilities, Labor Share Dynamics, And Inequality In An Age Of Intangibles, Adnan Velic

Articles

We examine the economy-wide degree of substitutability between intangible capital and other factor inputs in production using a large sample of advanced countries. In this context, we turn to studying the implications of intangible and tangible capital growth for labor income share dynamics. Compared to tangible capital, we find that intangible capital more strongly complements skilled labor. The analysis further indicates relative fungibility between tangible capital and a composite of intangible capital and skilled labor, in line with the rising prominence of knowledge-intensive tasks and AI-driven online platforms. The intrinsic nature of intangibles and their asymmetric effects across skilled and …

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, …

Boden Lecture: Taxation Of Autonomous Artificial Intelligence, Reuven S. Avi-Yonah, Lucas Brasil Salama, Herbert Snitz, W. Robert Thomas

Articles

This Article proposes that tax can be a useful supplement to other measures to regulate Autonomous Artificial Intelligence (AAI) and limit its potential harmful effects. This proposal differs from command-and-control regulation of AAI along the lines of European Union legislation that may unduly limit the development of AAI. It also differs from existing proposals to tax AAI to generate revenue to help workers displaced by AAI programs, or to tax the data used by AAI The proposal is based on granting AAI programs like ChatGPT separate legal personhood, like corporate personhood, while incentivizing or requiring their corporate owner to place …

The Law Of Energy Abundance, Alexandra B. Klass, Matthew Appel

Articles

For the first time in decades, electricity demand in the United States is increasing due to the growth of data centers to power artificial intelligence, new manufacturing hubs, and transportation electrification. At the same time, coalfired power plants have been closing in response to competition from lower cost natural gas and renewable energy. Clean energy is being rapidly deployed to replace fossil fuels but not quickly enough to address concerns about demand growth and grid reliability. Accordingly, there is a growing imbalance between electricity supply and demand in many regions of the country that threatens to increase electricity prices and …

Memory, Resistance, And Doubt, Richard Primus

Articles

Burroughs v. United States is not a famous case. But it could be. Its central character was a famous man. James Cannon, Jr., was a bishop in the Methodist church, a player in the worlds of business and banking, a ruthless political power broker, and a zealous Prohibitionist. In Virginia, where he lived, his role within the Democratic Party earned him the informal title of “the dry boss of the state,” and his influence extended well beyond the Old Dominion. Indeed, the essayist H.L. Mencken identified Cannon as the most important Prohibitionist in the country. “More than any other man,” …

Ai And Tribal Court Practice, Matthew L.M. Fletcher

Articles

American Indian tribal court practice resides at the intersection of two difficult legal problems. First, because tribal justice systems are usually very young and dynamic, awareness and analysis of tribal law is underdeveloped. Second, because tribal nations are not governed by state or federal law, tribal law is culturally unique. Tribal court practitioners often find that even routine legal matters will involve questions of first impression in the jurisdiction. All of this is to say tribal court jurisprudence is intensely jurisgenerative.

Because tribal law is often unsettled or indeterminate, the costs of discovering and applying this law are occasionally high. …

Facebook Decision Enables Irs To Seek Cwi Enforcement Against Meta, Stephen L. Curtis, Reuven S. Avi-Yonah, David G. Chamberlain

Articles

In this report, the authors explain how the Tax Court’s recent decision in the Facebook transfer pricing case — although widely viewed as a victory for the taxpayer, Meta Inc. — could instead be a Pyrrhic victory because it enables the IRS to pursue a potentially substantial periodic adjustment against the company. The views expressed in this report are solely the authors’ and do not necessarily reflect those of any other person or institution. On May 22 the Tax Court issued its opinion in Facebook. This was the third case, after Amazon and Veritas, in which the IRS tried to …

The Perils Of Pseudo-Textualism, Reuven S. Avi-Yonah

Articles

How much freedom does the IRS have to interpret the code?

In recent years, the Supreme Court and lower courts have put significant barriers in front of the IRS’s ability to interpret the code as it wishes. The question is to what extent the IRS can live with the barriers of textualism, nondeference, the major questions doctrine, nondelegation, and the Administrative Procedure Act. Of these, textualism seems to be the most problematic because it is the hardest to fix. The major questions doctrine rarely applies to statutory tax cases. Nondeference based on Loper Bright can be restricted by Congress adding …

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.

Was The Niit A Treaty Override?, Reuven S. Avi-Yonah

Articles

Three court decisions have recently addressed the interaction of the NetInvestment Income Tax (NIIT) and U.S. tax treaties. The issue waswhether the treaty provided an independent basis for crediting a foreigntax against the NIIT, because no such credit is available under the Code.First,in Toulouse, the Tax Court held that there was no treaty-based credit.Second,in Christensen, the Court of Federal Claims held that a treaty-based credit wasavailable, distinguishing Toulouse.Third, in Bruyea, the Court of Federal Claimsissued a broader opinion that allowed the credit.

The Sovereignty Problem In Federal Indian Law, Matthew L.M. Fletcher

Articles

There is a sovereignty problem in federal Indian law-namely, that the federal government's sovereign defenses prevent tribal nations and individual Indian people from realizing justice in the courts. Often, compelling tribal and Indian claims go nowhere as the judiciary defers to the interests of the United States, even where Congress has expressly stated its support for tribal interests. Conversely, tribal judiciaries allow claims to proceed to the merits, invoking customary and traditional law to hold tribal governments accountable.

Sovereignty theory helps to explain why justice can be done in one court system but not another. But federal, state, and tribal …

Remarks Following The Judge Frank M. Johnson, Jr. Memorial Lecture In Constitutional Rights And Liberties By The Honorable Judge Michelle Childs, Daiquiri Steele

Articles

No abstract provided.

Labor Law, Ownership, And The Firm, Sanjukta Paul

Articles

In shaping economic coordination within and across both firms and markets, one significant action of law is to allocate privileges or rights between people or groups of people. These include the right to coordinate with other people or groups of people in particular ways regarding core economic decisions-a type of activity that is not always or in all circumstances legally permissible. An area that makes this more general action of law especially concrete is antitrust or competition law, with its collection of "exemptions." Antitrust's formal and informal exemptions quite directly allocate economic coordination rights, for particular kinds of activity, and …

Keynote: Promoting Disability Equality Behind Bars, Margo Schlanger

Articles

A few years back, I finished a five-year appointment as a “settlement monitor” in a state prison system for a civil rights case about deaf and hard-of hearing people incarcerated there. With the consent of the parties, I had been appointed by a federal court to spend time in the state’s prisons, talking to prisoners and staff, and reviewing records and facilities. I saw some obvious problems. I recall one deaf prisoner; he used American Sign Language to communicate and could not speak at all. He was found to have committed a disciplinary infraction at a proceeding where he could …

Reckoning With Social Policy In Utility Regulation, Alexandra B. Klass, Gabriel Chan

Articles

State public utility regulation in the energy sector is undergoing a rapid transformation driven by public and private investment in clean energy deployment, the corresponding threat to incumbent fossil fuel interests, and growing demands for energy justice. This transformation will impact many aspects of societal well-being—from energy insecurity in disadvantaged communities to dramatic shifts in energy-sector employment—so it is unsurprising that public utility commissions would engage with social policy concerns. However, for decades, state courts and utility stakeholders have admonished commissions that they are economic regulators and that their jurisdiction does not include social policy. This Article shows that state …

Let's Break Some Rules: Immodest Proposals For Evidence Reform, Len Niehoff

Articles

In 1975, when the American Bar Association launched LITIGATION, its editors dedicated the entirety of one of the journal's first issues to evidence. Authors included distinguished practitioners, respected judges, and academic giants like Margaret A. Berger, Irving Younger, and Jim McElhaney. Subjects varied, but the articles shared a common sensibility: The recently adopted Federal Rules of Evidence were a good thing.

Physicists As Environmental Experts, Rachel Rothschild

Articles

The question of which scientists are qualified to provide expert guidance in legal controversies is a perennial debate among scholars, judges, and lawyers. Scientists who participate in legal disputes can achieve enormous power and influence, not only over the case at hand but over long-term developments in legal doctrine. While these issues arise in many areas of the law, environmental litigation has been a particularly active site of contestations over epistemic authority. Courts have frequently relied on scientists to understand whether the government is justified in regulating pollution and who may be liable for environmental and public health harms.

This …

Minor V. Happersett And The Repudiation Of Universal Suffrage, Ellen D. Katz

Articles

Nearly 150 years ago, Minor v. Happersett rejected a constitutional challenge to a Missouri law that excluded women from the electorate. Ratification of the Nineteenth Amendment forty-five years later is often said to have “overturned” Minor. In fact, the Amendment did no such thing. Minor held that voting is not among the privileges of citizenship protected by the Fourteenth Amendment. The Nineteenth Amendment says nothing to the contrary, and instead bars laws and practices that deny or abridge the right to vote “on account of sex.” Minor remains good law today.

It was not happenstance that the Nineteenth Amendment …

Altering Rules: The New Frontier For Corporate Governance, Gabriel Rauterberg, Sarath Sanga

Articles

Corporate law has taken a contractarian turn. Shareholders are increasingly contracting around its foundational rules—statutory rights, the fiduciary duty of loyalty, even the central role of the board—and Delaware courts are increasingly enforcing these contracts. In the one case where they did not, the legislature swiftly overruled the decision and adopted a new statutory provision permitting boards to completely cede their powers to a shareholder by contract. These developments have sparked a polarized debate, with some calling for a return to mandatory rules, while others push for total contractual freedom.

We argue, however, that the best approach lies neither in …

Gregory, Textualism, And Tax Shelters, Reuven S. Avi-Yonah

Articles

In this installment of Reflections With Reuven Avi-Yonah, Avi-Yonah suggests that courts should adopt a consequentialist approach to tax shelter litigation that would acknowledge the long- term risks of enabling tax shelters and seek to prevent their recurrence. In his excellent article on Gregory v. Helvering, David Elkins says that the common assumption that the case was about abuse of the tax-free reorganization provisions of the code is mistaken. Therefore, he argues, both Judge Learned Hand and the Supreme Court were wrong when they focused on whether the transaction was a “reorganization” as intended by Congress. Instead, they should have …

Are We Trapped By Realization?, Reuven S. Avi-Yonah

Articles

In this installment of Reflections With Reuven Avi-Yonah, Avi-Yonah examines the downsides of the realization requirement and potential solutions to them. In an excellent Tax Notes article, Steven Sheffrin recently mounted the most convincing defense of the realization requirement I have read. He explained that the case for taxing unrealized capital gains is based on the Haig- Simons definition of income. In this definition, income equals consumption plus savings when savings includes both realized and unrealized capital gains. If asset prices change because of changes in future cash flows, Haig-Simons income can provide an appropriate guide for designing tax policies.

Voter Harassment And The Limits Of State And Federal Power, Ellen D. Katz

Articles

Acts of voter harassment are often difficult to prevent. One longstanding, albeit underused, tool for addressing such harassment is found in section 11(b) of the Voting Rights Act (VRA). Continued use of the provision, however, is threatened by recent decisions restricting private enforcement of the VRA. This Essay examines one challenge to such enforcement, exploring the linkage between section 11(b)’s prohibition on voter intimidation and the enforcement of constitutional voting guarantees, on which private enforcement of the provision presently depends. It invites consideration of the idea that this linkage is sufficient and private enforcement is appropriate because section 11(b) provides …

The Three Lives Of Mamengwaa: Toward An Indigenous Canon Of Construction, Matthew L.M. Fletcher

Articles

For too long, tribal judiciaries have been an afterthought in the story of tribal selfdetermination. Until the last half-century, many tribal nations relied on federally administered courts or had no court systems at all. As tribal nations continue to develop their law-enforcement and police powers, tribal justice systems now play a critical role in tribal self-determination. But because tribal codes and constitutions tend to borrow extensively from federal and state law, tribal judges find themselves forced to apply and enforce laws that are poor cultural fits for Indian communities—an unfortunate reality that hampers tribal judges’ ability to regulate and improve …

Wrongful Birth After Dobbs And The Limits Of Tort Law In Areas Of Dissensus, E. Travis Ramey

Articles

As the abortion debate has raged in this country, a secondary debate over wrongful birth has accompanied it. Wrongful birth is a medical-malpractice-like claim brought by parents who allege that a medical provider negligently failed to provide accurate information about the fetus and that had they received accurate information they would have terminated the pregnancy. Courts rejected the tort theory until Roe v. Wade was decided. Post-Roe, courts were heavily divided over whether to recognize the claim and what damages were recoverable. Now, after Dobbs v. Jackson Women's Health Organization, the continued viability of wrongful birth is in question, and …

A Constitutional False Claims Act, Benjamin Mcmichael, Mackenzi Barrett, W. Kip Viscusi

Articles

The False Claims Act (FCA) represents one of the most important sources, if not the most important source, of liability in the healthcare system and other industries that routinely provide goods and services to the federal government. Originally designed to police fraud during the Civil War, the FCA has become a general statute to enforce many other complex legal schemes. Because failure to comply with complicated statutes and regulations can lead to a reimbursement claim being defined as false under the FCA, the FCA serves as a blunt instrument to cudgel those who fail to comply with the minutiae of …

Unfairness, Reconstructed, Luke Herrine

Articles

A paradigm shift is afoot at major federal consumer protection agencies. For four decades, a bipartisan bloc of bureaucrats has seen the purpose of consumer protection as promoting informed consumer choice or "consumer sovereignty." The idea was that informed consumers in competitive markets would protect themselves by choosing among sellers. Ensuring access to information would then shore up markets' self-correcting tendencies without requiring moral judgment. In the past few years, by contrast, regulators have prioritized sector-wide regulation, enforcement sweeps, and strategic cases against market leaders. They have justified their actions not ( exclusively) in terms of informed choice or efficiency …

The New Substantive Due Process, Leah M. Litman

Articles

After the Supreme Court overruled Roe v. Wade, commentators made much about the possible demise of substantive due process—the idea that the Constitution safeguards certain substantive liberties that are not specifically or explicitly spelled out in the Constitution. Judges and scholars are debating which substantive due process decisions are next on the chopping block and whether the entire domain of substantive due process is in jeopardy. But a curious thing happened as the Court scaled back and openly questioned the traditional individual-rights line of substantive due process: Rather than eliminating it entirely, the Court seems to have transposed it elsewhere. …

High Tech Touts, Sherman J. Clark

Articles

This essay has three interrelated aims. First, it articulates a set of capacities I call virtues of attention—capacities for intuitive discernment, good judgment about what is worth sustained focus, and the ability to engage deeply with worthwhile things. These are eudaimonist virtues in that they help us live well, not merely act rightly. Second, the essay explores what I call poisonous persuasion: the idea that rhetorical appeals, especially those used in marketing, may not only succeed by appealing to certain desires or habits of mind but may also deepen and entrench them. Third, I bring these insights together to examine …

Should Congress Reform The Accumulated Earnings Tax?, Reuven S. Avi-Yonah

Articles

In this installment of Reflections With Reuven Avi-Yonah, Avi-Yonah explains why the shifting landscape of the corporate tax rate requires congressional intervention. The Tax Cuts and Jobs Act 2017 permanently cut the corporate tax rate from 35 percent to 21 percent, and the Republican victory in the 2024 presidential election means that the rate is unlikely to be raised in the next four years. This means that there is, once again, a large disparity between the top individual tax rate of 37 percent (scheduled to increase to 39.6 percent in 2026 unless Congress acts) and the corporate rate. The corporate …