Digital Commons Network^™

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 …

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 …

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 …

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

Articles

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 …

Unprincipled All The Way Down, Wilfred U. Codrington Iii

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In 2006, the Supreme Court issued an emergency stay order in Purcell v. Gonzalez. Sparing in words and inattentive to the realities on the ground, the opinion nevertheless made a reasonable and understandable assertion: prior to issuing relief, courts presiding over elections should take into account any harms that judicial orders might cause, particularly in the lead-up to voting, alongside other considerations unique to elections. The statement was general enough to mollify the masses in the short-term. But over the long haul, it has proven to be a vehicle through which important election decisions might be made in less than …

Schrodinger's Dissent: The Hybrid Authority Of A Dissenting Opinion, Christina Frohock

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A dissenting opinion is the Schrodinger's cat of authorities: both the law and not the law simultaneously. Courts and scholars often clarify that a dissenting opinion is not binding. Outside the universe of precedent, that authority defies easy description. Emerging from the pen of a judge wearing a black robe and acting in an official capacity, a dissenting opinion exhibits the form of the law. Yet, beneath that lofty sheen, a dissent exhibits the substance of commentary. A dissenting judge writes to undercut the law, providing a case law coda. This Article describes the traditional categories of authority, primary and …

Are Exit Taxes Discriminatory?, Reuven S. Avi-Yonah

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In a recent column, Tax Notes’ Robert Goulder analyzed case law in Europe on the constitutionality of exit taxes. Many EU member states impose exit taxes on individual residents who move to lower-tax jurisdictions, but the Court of Justice of the European Union has repeatedly struck them down as inconsistent with freedom of movement unless they allow for deferral until realization or death with no interest charge, which is equivalent to having no exit tax at all. Goulder cogently argues that this issue is similar to the Moore problem in the United States, especially since the U.S. exit tax on …

Microglial Piezo1 Mechanosensitive Channel As A Therapeutic Target In Alzheimer's Disease, Erol D Ikiz, Erin R Hascup, Chilman Bae, Kevin N Hascup

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Microglia are the resident macrophages of the central nervous system (CNS) that control brain development, maintain neural environments, respond to injuries, and regulate neuroinflammation. Despite their significant impact on various physiological and pathological processes across mammalian biology, there remains a notable gap in our understanding of how microglia perceive and transmit mechanical signals in both normal and diseased states. Recent studies have revealed that microglia possess the ability to detect changes in the mechanical properties of their environment, such as alterations in stiffness or pressure. These changes may occur during development, aging, or in pathological conditions such as trauma or …

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.

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 …

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 …

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 …

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 …

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 …

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 …