Digital Commons Network^™

What Is The Best Candidate For A Post-Moore Constitutional Challenge?, Reuven S. Avi-Yonah

Articles

On December 5, 2023, the Supreme Court heard oral arguments in Moore, the case challenging the constitutionality of the mandatory repatriation tax enacted in 2017 (section 965). Most of the justices' questions focused on the potential collateral consequences from requiring realization as a constitutional matter, and the majority seemed inclined to avoid the constitutional issue by focusing on the fact that the income in Moore was realized and that section 965 simply followed a long list of precedents by attributing this corporate income to shareholders in a closely held corporation.

Locating Liability For Medical Ai, W. Nicholson Price Ii, I. Glenn Cohen

Articles

When medical AI systems fail, who should be responsible, and how? We argue that various features of medical AI complicate the application of existing tort doctrines and render them ineffective at creating incentives for the safe and effective use of medical AI. In addition to complexity and opacity, the problem of contextual bias, where medical AI systems vary substantially in performance from place to place, hampers traditional doctrines. We suggest instead the application of enterprise liability to hospitals—making them broadly liable for negligent injuries occurring within the hospital system—with an important caveat: hospitals must have access to the information needed …

The Right To Remove In Agency Adjudication, Christopher J. Walker, David Zaring

Articles

In SEC v. Jarkesy, the Supreme Court will decide the constitutional future of agency adjudication, especially in the context of agency enforcement actions and the imposition of civil penalties. If the Court agrees with the Fifth Circuit on any of its three independent reasons for unconstitutionality, agency enforcement and adjudication schemes across the federal regulatory state will be severely disrupted, in ways that are detrimental to both the regulator and the regulated. In this Essay, we propose a path forward: In certain circumstances, the regulated party should have a right to remove an enforcement action from an in-house agency adjudication …

Effects From Moore: Does The Corporate Tax Require Realization?, Reuven S. Avi-Yonah

Articles

This paper explores the history of the corporate tax as an excise versus income tax and explains potential effects from the Moore and Altria cases.

Preparing Future Lawyers To Draft Contracts And Communicate With Clients In The Era Of Generative Ai, Kristen Wolff

Articles

Thank you all for coming today. This is, I think, a really important topic. Important enough that the conference has decided to have two talks on the same topic, and Mark will be presenting on this in the next session, too. I plan on attending because I don’t think you can get enough perspectives on it right now. And hearing this information, I had to attend several talks myself before I really digested it and understood what this was all about. So, I hope that I can give you a little bit of that today. My name is Kristen Wolff. …

Valuing Social Data, Amanda Parsons, Salome Viljoen

Articles

Social data production—accumulating, processing, and using large volumes of data about people—is a unique form of value creation that characterizes the digital economy. Social data production also presents critical challenges for the legal regimes that encounter it. This Article provides scholars and policymakers with the tools to comprehend this new form of value creation through two descriptive contributions. First, it presents a theoretical account of social data, a mode of production that is cultivated and exploited for two distinct (albeit related) forms of value: prediction value and exchange value. Second, it creates and defends a taxonomy of three “scripts” that …

Tying Law For The Digital Age, Daniel A. Crane

Articles

Tying arrangements, a central concern of antitrust policy since the early days of the Sherman and Clayton Acts, have come into renewed focus with re-spect to the practices of dominant technology companies. Unfortunately, tying law’s doctrinal structure is a self-contradictory and incoherent wreck. A con-ventional view holds that this mess is due to errant Supreme Court precedents, never fully corrected, that expressed hostility to tying based on faulty economic understanding. That is only part of the story. Examination of tying law’s origins and development shows that tying doctrine was built on a now-dated paradigm of what constitutes a tying arrangement. …

Use Of Artificial Intelligence In Drug Development, Louise C. Druedahl, Nicholson Price, Timo Minssen, Dipl Jur, Ameet Sarpatwari

Articles

Considerable focus has been placed on the health care applications of artificial intelligence (AI). Already, machine learning, a subset of AI that involves “the use of data and algorithms to imitate the way that humans learn” has been used to predict diseases, while AI-powered smartphone apps have been developed to promote mental health and weight loss. Owing in part to such successes, the market for AI in health care has been forecasted to increase more than 1000% between 2022 and 2029, from $13.8 billion to $164.1 billion. One area of substantial promise is drug development, which is poised to benefit …

The Macroprudential Myth, Jeremy C. Kress, Jeffery Yufeng Zhang

Articles

According to conventional wisdom, the 2008 fnancial crisis fundamen- tally changed how policymakers approach fnancial regulation. Before the crisis, regulators sought to prevent individual fnancial institutions from collapsing, but this “microprudential” strategy proved inadequate to stop the market-wide meltdown. In response, policymakers purportedly turned to a new “macroprudential” approach that prioritizes the stability of the fnancial system as a whole instead of individual institutions in isolation. Regulators in the United States and abroad enthusiastically embraced macroprudential policy, implementing stress tests, capital buffers, liquidity requirements, and other supposed macroprudential tools. As the United States’ top bank regulator declared in 2015, “[W]e …

Two Takes On Administrative Change From The Roberts Court, Daniel Deacon, Leah Litman

Articles

In Loper Bright Enterprises v. Raimondo, the Supreme Court finally did what many long hoped (or feared) it would do: overrule Chevron v. Natural Resources Defense Council. Chevron instructed courts to defer to an agency’s interpretation of an ambiguous statutory provision, provided the interpretation was reasonable. Chevron, according to Justice Kagan, had “served as a cornerstone of administrative law” and “the warp and woof of modern government, supporting regulatory efforts of all kinds—to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.” Not surprisingly, statutes governing such matters contain quite a number of …

Building The Gateway: Why The Two Pillars Need Each Other., Reuven S. Avi-Yonah, Ajitesh Kir

Articles

There is a reason the OECD proposed two pillars for its gateway to a better tax future. A gateway requires both pillars, and neither can stand without the other. Pillar 2 is a fait accompli, but it needs countries to implement Pillar 1 as well because in the absence of a clear sourcing rule there is no limit to countries implementing the Qualified Domestic Minimum Top-Up Tax (QDMTT), which would turn off the other parts of Pillar 2 and potentially result in double taxation. Pillar 1 is not going forward in the absence of a Multilateral Tax Convention (MLC), but …

Congress And Shifting Sands In Administrative Law., Christopher J. Walker

Articles

In recent years, we have seen an anti-administrativist turn in the federal judiciary, with the Supreme Court limiting agency power in important respects. These shifting sands in administrative law seem to be motivated, at least in part, by the Court’s perception of the rise of presidential administration and decline in legislative activity. As part of the Widener Commonwealth Law Review Judging in Administrative Law Symposium, this Essay assesses how the Court has responded to concerns about over-presidentialism and then sketches out several ways Congress can respond to reassert itself in federal lawmaking.

Feedback Loops: Fortifying Feedback, Patrick Barry

Articles

Feedback has an Important role to play in the fight against impostor syndrome and its many toxic by-products, including isolation, dread, depression, drops in motivation, and negative self-talk. In 2013, for example, one of the American Psychological Association’s oicial publications, gradPSYCH magazine, ran a cover story called “Feel like a Fraud?” that highlighted the stabilizing power that the right kind of feedback can provide. “he thing that made so much diference was supportive, encouraging supervision,” explained a graduate student interviewed for the story.

Channeling A Federal Right To Education Through State Constitutions And Courts, Nicole Sunderlin, Evan Caminker

Articles

Professor Black attributes the ubiquitous adoption of education clauses in state constitutions in the immediate pre- and especially post-Reconstruction era to a “constitutional compromise” struck by Congress and the states. The State Citizenship commitment was designed to enhance the republican nature of both levels of governance by ensuring broader access to political participation through voting and broader access to public education to inform and support democratic deliberation. The education component of this commitment was uniquely secured, argues Black, through a state-federal compromise using two complementary mechanisms: first, by mandating states to embrace a state constitutional obligation to provide basic educational …

The Origins Of The Legal Imagination, James Boyd White

Articles

I want to say at the outset that I feel honored beyond imagining at this celebration of the fiftieth anniversary of my book, and all the more because it is you who have set this up—so many beloved friends over the years and others who will surely become friends. I thank you deeply.

As I wondered about what I might say this morning, I thought perhaps you would be interested in where this truly odd book, with its 986 pages of readings and questions, came from.

Fifty Years Of 'Cut To Grow': How Changing Narratives Around Corporate Tax Policy Have Undermined Child And Family Well-Being, Reuven S. Avi-Yonah, Emily Divito, Niko Lusiani

Articles

What follows in this report is an assessment, though not exhaustive, of the central worldviews and set of assumptions driving key US corporate tax reform moments in history—and their consequences for the well-being of children and families in the US. Though political narratives of all kinds are never cleanly chronological (and this remains true of those pertaining to corporate taxation and well-being policies), we aim to build on existing understanding of how dominant narratives come to be and how they, to the extent that they do, drive corporate tax policy outcomes in the US. Looking back over the past 50 …

Can The United States Curb Its Debt?, Reuven S. Avi-Yonah

Articles

After the upcoming presidential election, the United States is almost certainly going to have a president who is barred from running for reelection, regardless of the outcome in November. This situation has never happened before and it presents an important opportunity for fundamental tax reform.

The Dividend Puzzle Redux, Reuven S. Avi-Yonah

Articles

The news that Meta will for the first time pay a dividend to its shareholders has prompted discussion of whether dividends will make a comeback as a major component of investor returns for high-flying corporations. Before this latest development, the largest U.S. companies (that is, the digital giants) tended to engage in stock buybacks and did not usually pay dividends.

Is Treasury Bound By The Arm's-Length Standard?, Reuven S. Avi-Yonah

Articles

In December 2023 Abbott Laboratories petitioned the Tax Court to reverse $417 million in section 482 deficiencies. The petition addresses many issues, but as Tax Notes contributing editor Ryan Finley pointed out in his excellent recent article, the most important one relates to the issue of whether stock-based compensation should be included in the pool of costs covered by a costsharing arrangement. This is the same issue that taxpayers have litigated repeatedly, with the most recent case, Altera, resulting in an IRS victory in the Ninth Circuit. If Abbott wins, the case is appealable to the Seventh Circuit, potentially setting …

Corporate Taxpayers And Frivolous Arguments, Part 1, Reuven S. Avi-Yonah

Articles

In two recent cases, corporate taxpayers have made legal arguments that seem on their face to be frivolous.

The first example, as Robert Goulder explains in his excellent recent column, is the argument made by Liberty Global (LGI) involving the source of the gain on the sale of a foreign subsidiary. LGI sold the shares of a Japanese subsidiary for a gain of $3.25 billion, of which $438 million was dividend income under section 1248. The issue was the source of the remaining $2.8 billion gain. LGI argued that it should be foreign source despite the explicit source rule for …

Corporate Taxpayers And Frivolous Arguments, Part 2, Reuven S. Avi-Yonah

Articles

In my previous column, I discussed the Liberty Global cases and argued that the taxpayer’s positions were frivolous or lacked economic substance. I also argued that a corporate tax director who knows that a return position is frivolous or that a transaction has no economic substance should “just say no.” Until the day arrives that most tax directors take this view (I am not holding my breath), the IRS must rely on a combination of the uncertain tax position schedule and penalties under section 6662.

Why The United States Needs A Gaar, Reuven S. Avi-Yonah

Articles

The Internal Revenue Code of 1986, as amended, has over 1 million words and more than 5,600 pages. It is by far the longest and most complicated law in the U.S. code. The regulations add over 4 million words. Why?

Try Again: The Problems Of Befit, Reuven S. Avi-Yonah

Articles

In September 2023, the European Commission proposed the directive Business in Europe: Framework for Income Taxation (BEFIT) for corporate income taxation of large groups (COM(2023) 532 final (Sept. 12, 2023)). This is the latest iteration of the EU’s effort to harmonize corporate taxation within the single market. But like its predecessor the Common Consolidated Corporate Tax Base, BEFIT suffers from flaws that undermine its stated goals. The EU can do better, especially given that pillar 1 of the base erosion and profit-shifting’s project 2.0 shows the way forward.

A Fractured Supreme Court: Select Criminal Law And Procedure Cases From The Supreme Court’S 2023-24 Term, Eve Brensike Primus, Jordan Schuler

Articles

In its 2023-2024 Term, the Supreme Court outlined the contours of when a former President of the United States would be immune from criminal prosecution; issued important decisions interpreting the scope of the Cruel and Unusual Punishments Clause, the Double Jeopardy Clause, the Confrontation Clause, and the Second Amendment right to bear arms; decided a number of important statutory interpretation cases; and continued to avoid Fourth Amendment issues, only addressing them in the context of a malicious prosecution charge. Perhaps more striking than the Court’s decisions in these cases, though, was the Justices’ lack of consensus. Of the 16 criminal …

A Law At War With Itself: Character Evidence And The Doctrine Of Chances, Len Niehoff, Shannon Hickey

Articles

Certain legal principles have raging within them a kind of civil war. Important but abstract policy concerns pull the doctrine in one direction; common sense and practical experience pull it in another. Casualties ensue.

Perhaps no body of legal doctrine better exemplifies this sort of internal conflict than the general ban on character evidence, as embodied in Federal Rule of Evidence 404(a)(1). That rule states: “Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with that character or trait.” The rule has deep roots in the …

The Effect Of Supportive Relationships And A Sense Of Community On The Success Of First-Year College Students, Stetson K. Akers

Electronic Theses and Dissertations

Colleges and universities across the United States actively seek to bring quality students to their institutions and retain them through their course of study while striving to support the successful completion of their degree. The problem is that students face many sources of adversity within their first year of college and leave the institution they have enrolled in before returning for their second year, including financial issues, mental health struggles, and academic success problems. The reasons students leave vary, but it remains important to help students feel connected to the community of their campus while supporting their mental health during …

Efficacy And Safety Of Lumasiran For Infants And Young Children With Primary Hyperoxaluria Type 1: 30-Month Analysis Of The Phase 3 Illuminate-B Trial, Yaacov Frishberg, Wesley Hayes, Hadas Shasha-Lavsky, David J Sas, Mini Michael, Anne-Laure Sellier-Leclerc, Julien Hogan, Richard Willey, John M Gansner, Daniella Magen

Faculty, Staff and Students Publications

BACKGROUND: Primary hyperoxaluria type 1 (PH1) is a genetic disorder resulting in overproduction of hepatic oxalate, potentially leading to recurrent kidney stones, nephrocalcinosis, chronic kidney disease, and kidney failure. Lumasiran, the first RNA interference therapeutic approved for infants and young children, is a liver-directed treatment that reduces hepatic oxalate production. Lumasiran demonstrated sustained efficacy with an acceptable safety profile over 12 months in infants and young children (age <6 >years) with PH1 in ILLUMINATE-B (clinicaltrials.gov: NCT03905694), an ongoing, Phase 3, multinational, open-label, single-arm study.

METHODS: Here, we report interim efficacy and safety findings from ILLUMINATE-B following 30 months of lumasiran treatment. …

Understanding The Role Of Ampa Receptors In Autism: Insights From Circuit And Synapse Dysfunction, Andres Jimenez-Gomez, Megan X Nguyen, Jason S Gill

Faculty, Staff and Students Publications

Autism spectrum disorders represent a diverse etiological spectrum that converge on a syndrome characterized by discrepant deficits in developmental domains often highlighted by concerns in socialization, sensory integration, and autonomic functioning. Importantly, the incidence and prevalence of autism spectrum disorders have seen sharp increases since the syndrome was first described in the 1940s. The wide etiological spectrum and rising number of individuals being diagnosed with the condition lend urgency to capturing a more nuanced understanding of the pathogenic mechanisms underlying the autism spectrum disorders. The current review seeks to understand how the disruption of AMPA receptor (AMPAr)-mediated neurotransmission in the …

Branched-Chain Amino Acid Accumulation Fuels The Senescence-Associated Secretory Phenotype, Yaosi Liang, Christopher Pan, Tao Yin, Lu Wang, Xia Gao, Ergang Wang, Holly Quang, De Huang, Lianmei Tan, Kun Xiang, Yu Wang, Peter B Alexander, Qi-Jing Li, Tso-Pang Yao, Zhao Zhang, Xiao-Fan Wang

Faculty, Staff and Students Publications

The essential branched-chain amino acids (BCAAs) leucine, isoleucine, and valine play critical roles in protein synthesis and energy metabolism. Despite their widespread use as nutritional supplements, BCAAs' full effects on mammalian physiology remain uncertain due to the complexities of BCAA metabolic regulation. Here a novel mechanism linking intrinsic alterations in BCAA metabolism is identified to cellular senescence and the senescence-associated secretory phenotype (SASP), both of which contribute to organismal aging and inflammation-related diseases. Altered BCAA metabolism driving the SASP is mediated by robust activation of the BCAA transporters Solute Carrier Family 6 Members 14 and 15 as well as downregulation …

Association Of Circulating Ketone Bodies With Cognitive Performance And Dementia In The Multi-Ethnic Study Of Atherosclerosis (Mesa), Parag Anilkumar Chevli, Christopher L Schaich, Alexis C Wood, Luqman A Tk, Anurag Mehta, Vardhmaan Jain, Margery Connelly, Suzanne Craft, Elad Shemesh, José A Luchsinger, Kathleen M Hayden, Bonnie Colleen Sachs, Timothy M Hughes, Michael D Shapiro

Faculty, Staff and Students Publications

Introduction

Growing interest centers on the association between circulating ketone bodies (KB) and cognitive function, notably in aging and neurodegenerative diseases.

Methods

Associations of plasma KB with incident dementia and cognitive performances were examined among Multi‐Ethnic Study of Atherosclerosis (MESA) participants. KB were measured using plasma samples collected following an overnight fasting at Exam 1 (2000–02) and detailed cognitive testing at Exam 5 (2010–2012, N = 4392), Exam 6 (2016–2018, N = 1838), and in MESA‐MIND (2019–2021, N = 2060).

Results

Over 16.7 years, a doubling of total KB was associated with a greater risk of incident dementia (hazard ratio …