Digital Commons Network^™

Toxic Battery: Pollution As A Dignitary Tort, Amber Polk

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No abstract provided.

Taxation’S Limits, Luís C. Calderón Gómez

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Countless pages have been devoted to the question of why everyone should pay tax, yet its opposite has gone largely unnoticed: why should some people and organizations not pay tax? Our tax system exempts from ordinary income taxation a wide and diverse array of people and organizations engaged in significant economic activity—from parents providing childcare services for their family to consular activities and charities operating animal shelters—seemingly without a convincing explanation. Perhaps because of the dizzying diversity of tax-exempt activities, scholars and policymakers have avoided comprehensively or coherently justifying our exemption regimes.

This Article develops a novel normative theory that …

Should Ireland Have Taxed Apple?, Reuven S. Avi-Yonah, Nessa Ní Chasaide

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On September 10 the EU’s Court of Justice issued its long-awaited decision in the Apple state aid case. Surprisingly, it reversed the EU’s General Court decision and held that the European Commission was correct in finding that Ireland had provided prohibited state aid to Apple, and therefore Apple must pay Ireland the €13 billion in taxes that it would have paid but for the illegal subsidy. This state aid case, the largest in the EU’s history, highlights significant issues about the legal governance of corporate tax. This article examines the notable features of the Court ruling, then outlines why we …

Don’T Be Cruel: Cruelty, Complicity, Self-Knowledge, And Growth, Sherman J. Clark

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The papers in this symposium, and the larger body of scholarship to which this symposium is a contribution, ask us to attend to the often brutal and inhumane conditions in American jails and prisons. But why should we do that? Why should we confront the suffering of the incarcerated? Why should we ask ourselves whether that suffering is unjust, unnecessary, or even unconstitutional? The main reason, of course, is that we want to remedy those injustices. We care about the suffering of our fellow human beings, and people do not cease to be our fellow human beings merely because they …

Tossing Sand In The Regulatory Gears: Hurdles To Policy Progress In The Supreme Court, Nina A. Mendelson

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In the last few years, the Supreme Court has been a source of seismic change. In Dobbs v. Jackson Women’s Health Organization, the Court overruled Roe v. Wade, which had protected the right to abortion for nearly fifty years. In Loper Bright Enterprises v. Raimondo, the Court abandoned so-called Chevron deference to particular categories of administrative agency interpretations, a doctrine viewed as bedrock for over forty years. Humphrey’s Executor v. United States, the 1935 ruling validating independent multi-member commissions such as the Federal Trade Commission, Securities and Exchange Commission, and Federal Communications Commission, may soon join the others on the …

Tax Delegation After Loper Bright, Reuven S. Avi-Yonah

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This paper examines the scope of the IRS and Treasury’s tax reg-writing authority after the Supreme Court’s decision in Loper Bright.

Theistic Illiberal Constitutionalism: A Review Of Adrian Vermeule’S Common Good Constitutionalism, Kyron J. Huigens

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Adrian Vermeule’s Common Good Constitutionalism drew a remarkable amount of attention from constitutional law scholars when it was published in 2020. About eighteen months later, Vermeule published a piece complaining that the critics had missed the point, that they had ignored the natural law jurisprudence that grounds the work. He was correct. This Review addresses Vermeule’s natural law jurisprudence, emphasizing the fact that it is a religious natural law jurisprudence. His arguments are in the tradition of ScholasticismAristotelian logic incorporated into Christian theology by St. Thomas Aquinas. Scholasticism is a remarkably weak foundation for constitutional jurisprudence. It is a vast …

Multi-Generation Queer Families: Foregrounding The Lgbtqia+ Children Of Lgbtqia+ People, Bella Mancini Pori, Edward Stein

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In the last several years, state legislatures have passed a disturbing array of anti-queer laws that target queer (especially trans) children. The basic fear animating these laws is that exposure to LGBTQ people or LGBTQ supportive ideas will somehow turn straight children queer. LGBTQ activists have responded to the concern that exposure to queer people or ideas will make children queer by arguing that sexual orientations are innate or immutable. This immutability argument is problematic, first, because it avoids confronting the normative judgment at the heart of the fear of a queer child by failing to say that there is …

Chenery Ii Revisited, Daniel T. Deacon

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Ever since the Supreme Court’s 1947 decision in SEC v. Chenery Corporation, known as Chenery II, agencies have enjoyed wide latitude to develop policy through individual adjudications in addition to rulemaking. Chenery II has never been completely uncontroversial, and in recent years, calls to overturn or limit it have been expressed in increasingly fervent tones. Agency policymaking by adjudication has emerged as a new front in the struggle over the administrative state.

Against the backdrop of such calls, this Article revisits some of the fundamental questions concerning the Chenery II doctrine. I argue in favor of retaining Chenery II’s core …

Antitrust After The Coming Wave, Daniel A. Crane

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A coming wave of general-purpose technologies, including artificial intelligence ("AI"), robotics, quantum computing, synthetic biology, energy expansion, and nanotechnology, is likely to fundamentally reshape the economy and erode the assumptions on which the antitrust order is predicated. First, AI-driven systems will vastly improve firms' ability to detect (and even program) consumer preferences without the benefit of price signals, which will undermine the traditional information-producing benefit of competitive markets. Similarly, these systems will be able to determine comparative producer efficiency without relying on competitive signals. Second, AI systems will invert the salient characteristics of human managers, whose intentions are opaque but …

A Fresh Look At Judicial Remedies In Eu Equality Law And Beyond: The Untapped Possibility Of Structural Injunctions., Daniel H. Halberstam, Sina Van Den Bogaert

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This article proposes a shift in thinking about judicial remedies (or “sanctions”), from anti-discrimination law to equal pay and beyond.We suggest the currently preferred remedies – one-off declarations, compensation, fines, and simple orders to obey the law – may be insufficient when confronting a recalcitrant institution, complex violations, and broad, ongoing harm. In such cases, we suggest considering a remedy long overlooked in Europe: a “structural injunction”, i.e. ordering changes to an offending organization’s structure, processes, or rules. We argue that under certain circumstances, an injunction, including a structural injunction, may be appropriate or required under EU law to remedy …

The Origins Of The Major Questions Doctrine, Rachel Rothschild

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In a series of recent cases, the Supreme Court has invoked the newly named “major questions doctrine” to strike down agency regulations that protect public health and the environment. Several Justices have argued that while the name “major questions” may be new, these decisions are simply the latest iteration in a longstanding effort of the courts to curtail the explosive growth of the administrative state since 1970. The first paradigmatic example of this line of cases is the 1980 “Benzene” case, in which the Supreme Court set aside the Occupational Safety and Health Administration (OSHA)’s new workplace standards for the …

Tax In Law Schools, Michael Hatfield

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At the 2023 Association of American Law Schools Tax Section meeting, professors discussed their impressions of a decline in the number of JD students studying tax. Their impressions were consistent with declines that have been documented in similar fields. Between 2011 and 2021, U.S. accounting programs saw an 18% drop in students, while new CPA candidates declined 39% from 2010 to 2022. In the United Kingdom, the number of law schools that teach tax has diminished by 43% since 2002. This Article examines tax education in 40 U.S. law schools, focusing on course offerings and enrollment trends from 2012 to …

A Global Wealth Tax?, Reuven S. Avi-Yonah

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Mitt Romney famously said during his 2012 presidential campaign that “corporations are people.” Mindy Herzfeld’s column comparing the proposed 2 percent global wealth tax on billionaires with the corporate minimum tax (pillar 2) raises the opposite question: Are people like corporations for tax purposes? I would say no, for several reasons.

Crypto And The Exit Tax, Reuven S. Avi-Yonah

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Robert Goulder has devoted one of his excellent columns to the fascinating case of “Bitcoin Jesus.” As explained by Goulder:

Another billionaire was in the news recently for reasons that relate to taxation, although it’s doubtful he will be accused of much virtue. The man known internationally as “Bitcoin Jesus” got himself arrested in Spain on April 27. He now faces extradition to the United States, where an eight-count criminal tax indictment awaits him. Bitcoin Jesus is coming home.

This is a far cry from the Jesus born in Bethlehem who once said that it was easier for a camel …

A Social Status Theory Of Defamation Law, Yonathan A. Arbel

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Despite deep inequality in social status and social capital in American society, legal scholarship has done relatively little to understand the structures that produce status and maintain its distribution. The Article argues that defamation law plays such a role. The orthodox view is that defamation law's goal is to protect dignity. This view was expressed in a famous Supreme Court holding in 1966, which held that defamation law is necessary to protect "the essential dignity" of "every human being. " The later seminal work of Robert Post cemented it. Seemingly unrelated, scholars of defamation law have found its structure mystifying, …

Decision Time: Illuminating Performance In India’S District Courts, Varsha Aithala, Anushka Sachan, Srijoni Sen, Himanshu Payal, Chiranjib Bhattacharya

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Studies on court administration in India have so far focused their attention largely on caseload management and judge strength of the higher judiciary. In-depth investigations of the performance of India’s lower courts, the primary loci of a citizen’s contact with the judiciary, are rarer, largely due to the lack of available data at scale. We conduct a quantitative analysis of a large dataset of more than 1700 Indian district courts between 2010 and 2018, to assess court performance through the measure of timeliness of case disposal. We use median days to decision—the median number of days it takes for a …

Comparing The Roles Of Secondary Schools And Universities In The Formation Of British Cabinet Ministers1922-2022, John William Hogan, Sharon Feeney

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The role played by the education system in the creation and reproduction of governing elites, and its countervailing potential to create a more meritocratic and egalitarian society, has been a topic of enduring concern. However, these debates have been rendered opaque by an inability to directly compare elite formation systems both within and between countries. To resolve this problem, we employ elite formation quantitative indices to compare the roles of the secondary school and higher education systems, of the United Kingdom of Great Britain and Northern Ireland, in the formation of its political elite – cabinet ministers – between 1922–2022. …

The Sufficiency Of Disclosure Of Ai Inventions, Mateo Aboy, Aparajita Lath, Timo Minssen, Kathleen Liddell

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• The complex and data-driven nature of artificial intelligence (AI) raises questions for the sufficient disclosure of patent applications in this field. What are the European patent disclosure requirements for AI inventions?

• One challenge is that, prior to training, AI systems can be considered generic models. But after training, they transform into specialized AI systems to solve a particular problem. This transformation requires training data, making it an integral part of the AI system’s definition. But to what extent is the disclosure of the training data or training process necessary for patent disclosure?

• The Boards of Appeal of the European Patent …

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The Usefulness Of Pillar 1, Reuven S. Avi-Yonah

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Many commentators have declared that pillar 1 of the base erosion and profit-shifting project 2.0 is dead. By its explicit terms, the multilateral tax convention (MLC) implementing pillar 1 cannot go into effect this year without ratification by the United States, and the chances of the United States ratifying it before or after the election are low given massive opposition in Congress. If the MLC does not go into effect by December 31, 2024, over 30 countries will likely impose digital services taxes on January 1, 2025, making the whole pillar 1 project (which was aimed at preventing the spread …

Revisiting The Conceptual Terrains Of The Right To Accessibility In India: The Role Of Judicial Enforcement, Sanjay Jain, Malika Jain

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The main objective of this paper is to critically reflect on the right to accessibility of persons with disabilities in India, with special focus on the context of public streets and environments. The paper draws on work carried out during the India-related part of the Inclusive Public Space Project, as well as judicial pronouncements, and the norms evolved by India as a party to the United Nations Convention on the Rights of Persons with Disabilities. In this paper, we briefly set out competing conceptions of accessibility and evaluate the constitutional and statutory manifestations of the principle of accessibility. Further, the …

Theoretical Justifications For Trade Secrets Protection Of Routine Business Information, Timothy Murphy

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For over a century trade secret law has protected internal business information from misappropriation by departing employees. Over this time, courts developed various limiting doctrines to minimize the impact of this broad protection on employee mobility in particular cases. However, the workplace has changed significantly over this time and these changes raise substantial questions as to whether there is any valid theoretical justification for continuing to protect routine business information under trade secret law. In an environment where the vast majority of trade secrets claims are against former employees, the lack of sound justification for protecting routine business information, the …

Sidestepping Substance: How Administrative Law Plays An Outsized Role In Shaping Environmental Policy And Why Recalibration Is Necessary, Sanne H. Knudsen

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Administrative law and environmental law are companion fields. Still, they are not interchangeable. They promote different values. And yet, sometimes when courts resolve environmental disputes by relying on administrative doctrines, courts elevate the values of administrative law over those codified in environmental statutes. This is particularly concerning when courts rely on judicially-created administrative law doctrines to sidestep congressional intent as expressed by the substantive aims of environmental statutes.

To reduce the risk of sidestepping—whether inadvertent or intentional—this Article critically examines how administrative law doctrines can undermine environmental law. Drawing on prominent case examples, including the Supreme Court decision in Sackett …

Sexual Assault Victims Face A Penalty For Adjacent Consent, Jillian J. Jordan, Roseanna Sommers

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Sexual assault is pervasively underreported, and victims are often blamed and stigmatized. We highlight an important but overlooked factor that may contribute to these outcomes: adjacent consent. Even when a rape is objected to verbally and physically, and accomplished only through violent force, respondents see the victim as less virtuous and deserving of support if she previously consented to something sexual with her perpetrator (e.g., kissing, foreplay, sex on a prior occasion). Our findings are striking in an age of “no means no” and “affirmative consent”—and notably hold among even young and politically progressive respondents who do not otherwise disapprove …

Bizindan Miinawa (Listen Again), Matthew L.M. Fletcher

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Johnson v. McIntosh was as fake as John Wayne’s teeth. That one was a property dispute, remember? Two wealthy, privileged, and powerful white people squared off over thousands of acres of land acquired from Indigenous nations who called the vast valley of Eagle River home. On one side, you had a former United States Supreme Court Justice; on the other, you had a wealthy political benefactor/beneficiary. No tribal nations or Indigenous peoples to be seen or heard from. And of course, the competing property claims at issue barely overlapped, if at all, thanks to stipulations of the parties at the …

Has Cost Sharing Outlived Its Usefulness?, Reuven S. Avi-Yonah

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In her thoughtful column on cost sharing, Mindy Herzfeld explains the history of costsharing arrangements (CSAs) going all the way back to 1966, and then asks several questions, including: “Should the existing CSA regs be scrapped in favor of another regime, or simply eliminated as a choice for taxpayers?”

Pillar 2 And Specific Benefits For Multinationals, Reuven S. Avi-Yonah

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In a recent column, Tax Notes’ Martin Sullivan asked whether a country that wishes to neutralize the effect of pillar 2 on its investment incentives can get around the OECD prohibition on a multinational enterprise receiving what amounts to a refund of the pillar 2 tax it pays to that country. He writes that:

It would make a mockery of the pillar 2 taxation system if an investment hub imposed a 15 percent minimum tax on a company — thereby shielding profit in that hub from other jurisdictions’ pillar 2 tax — and then, through a separate mechanism, unconditionally returned …

Inclusion4eu: Towards A Framework Of Inclusive Software Design Processes And Practices, Damian Gordon, Andrea Curley, Emma Murphy, John Gilligan, Anna Becevel, Dympna O'Sullivan

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This research is based on a trans-European research project aimed at enhancing software design and engineering practices to promote inclusivity, involving stakeholders from academia, industry, and disability advocacy services. To explore the nature and meaning of inclusion, a number of different approaches to inclusion are outlined, including models of equitable design (Accessible Design, Inclusive Design, Universal Design, and Design for All), User Design processes (Co-Production, Co-Creation, User-Centred Design, Co-Design, and Participatory Design), and Software Engineering Methodologies (Linear, Spiral, and Agile). These three categories of models are combined to form a three-dimensional environment in which software development projects can be mapped …

Designing Self-Management For And With Persons Living With Dementia Osullivan, Dympna, Dympna O'Sullivan, Michael Wilson, Damon Berry, Orla Moran, Siobhan O,Neill, Ciaran Nugent, Jonathan Turner, Julie Doyle

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Promoting high quality of life for persons living with dementia has emerged as a central goal in global public health agendas. The emphasis has shifted from extending life to actively enhancing overall well-being by postponing or preventing additional disability. This represents a departure from traditional medical perspectives on dementia to a more socially-oriented approach, placing a strong focus on wellbeing.

In parallel, the concept of self-management for people with living dementia has emerged, where this is a person-centred approach in which the individual is empowered and has ownership over the management of their life and condition. Practice recommendations for person-centered …

Consumer Litigant Finance And Legal Ethics: Empirical Observations From Texas, Anthony J. Sebok, Lynn A. Baker

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A handful of states, including Texas, have Rules of Professional Responsibility which permit attorneys to provide cash advances to their own clients. In previous work, we suggested that if more states permitted law firms to offer this sort of funding to their clients it would increase competition within the consumer litigant funding market, to the benefit of consumers. We also hypothesized that relaxing these existing prohibitions would better enable tort claimants to decline low-ball settlement offers from defendants in one-off cases.

This Article offers some initial insights into these questions. It reports the findings of our modest empirical study involving …