Law Commons^™

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. …

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 …

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.

Tone Coach, Patrick Barry

Articles

Think of how many emails you have sent in the past week, month, and year. Did you always strike the appropriate tone? Did you always use the right words? Did you consistently sound the way you intended? I encourage my law students to use these questions to periodically give themselves some self-feedback. Take a look at your recent (and not-so-recent) correspondences, I tell them. Read your words aloud. Assess whether the voice you hear is the voice you want others to hear.

Clinicians In The Loop Of Medical Ai, W. Nicholson Price Ii

Articles

As medical AI begins to mature as a health-care tool, the task of governance grows increasingly important. Ensuring that medical AI works, works where it’s used, and works for the patient in the moment is a challenging, multifaceted task. Some of this governance can be centralized—in review by FDA or by national accreditation labs, for instance. Some must be local, performed by the hospital or health system about to use the product in their own, unique environment. But a large amount of governance is left to the individual provider in the room, the human in the loop who presumably knows …

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 …

Corporate Tax: Best Tool For Taxation's Regulation Goal, Reuven S. Avi-Yonah

Articles

In this installment of Reflections With Reuven Avi-Yonah, Avi-Yonah explains the three primary goals of taxation — revenue, redistribution, and regulation — and shows how VAT, the individual tax, and the corporate tax each uniquely match one of the goals. On January 20 President Trump signed two executive orders related to international taxation, marking a sharp policy shift from the prior administration. The first renounced any prior U.S. commitments to the OECD/inclusive framework global anti-base-erosion (GLOBE) project, stating that “the Global Tax Deal has no force or effect in the United States.” The order argued that the GLOBE project infringed …

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, …

Eliminating Qbai - One Step Forward, Two Steps Back?, Reuven S. Avi-Yonah

Articles

In this installment of Reflections With Reuven Avi-Yonah, Avi-Yonah explains what makes an effective U.S. tax regime and uses those attributes to evaluate the One Big Beautiful Bill Act. There is plenty to criticize about the One Big Beautiful Bill Act (OBBBA, P.L. 119-21), signed into law by President Trump on July 4. It increases the deficit by about $4 trillion when the interest costs from the additional borrowing are included, and by about $5.5 trillion if its provisions are made permanent in 2029, like the Tax Cuts and Jobs Act provisions were in 2025. It is distributionally skewed to …

Is The Obbba Compatible With Pillar 2?, Reuven S. Avi-Yonah

Articles

In this installment of Reflections With Reuven Avi-Yonah, Avi-Yonah compares House and Senate sections of the One Big Beautiful Bill Act and examines the potential effect on international tax relations. On May 22 the House of Representatives passed the One Big Beautiful Bill Act (OBBBA). The House version of the OBBBA extended the Tax Cuts and Jobs Act tax cuts but did not significantly change its international provisions. It did, however, contain proposed section 899, which would have imposed enhanced taxation on residents and corporations from countries that have “discriminatory or extraterritorial taxes,” defined to include primarily the undertaxed profits …

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 …

Do Specialized Medical Llms Demand A Radically New Approach Under The Eu's Medical Device Regulation, Hannah Louise Smith, W. Nicholson Price Ii

Articles

We examine the arguments made by Onitiu and colleagues concerning the need to adopt a “backward-walking logic” to manage the risks arising from the use of Large Language Models (LLMs) adapted for a medical purpose. We examine what lessons can be learned from existing multi-use technologies and applied to specialized LLMs, notwithstanding their novelty, and explore the appropriate respective roles of device providers and regulators within the ecosystem of technological oversight.

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 …

Can Side By Side Work?, Reuven S. Avi-Yonah

Articles

On June 26 Treasury Secretary Scott Bessent announced that a compromise had been reached between the United States and the rest of the G7 (Canada, France, Germany, Italy, Japan, and the United Kingdom), providing that pillar 2 of the OECD’s two-pillar global tax reform project will not apply to U.S. multinationals. As a result, proposed section 899, which would have imposed retaliatory taxation on corporations from countries that apply pillar 2 (and specifically the undertaxed profits rule) to U.S.-based multinationals, was removed from the One Big Beautiful Bill Act.

Us Policy And Pillar 2: The Evolution Of Us Tax Policy Toward Oecd Pillar 2 And Its Global Implications, Reuven S. Avi-Yonah

Articles

This paper analyzes the United States’ evolving position on OECD Pillar 2, focusing on the Trump administration’s initial rejection and subsequent negotiations to exempt US multinationals from the Undertaxed Profits Rule (UTPR). It examines the legislative and diplomatic strategies that led to international acceptance of GILTI as a valid IIR. The analysis concludes that the resulting compromise preserves US tax sovereignty while maintaining the global framework’s integrity.

The Irs Approach To Periodic Adjustments: Losing Bet Or Royal Flush?, Jeffery M. Kadet, Reuven S. Avi-Yonah, David G. Chamberlain, Stephen L. Curtis

Articles

In this article, the authors argue that GLAM 2025-001 is consistent with the terms and purposes of the commensurate with income provision, relevant legislative history, and applicable case law and that the IRS approach to commensurate with income enforcement is a valid application of discretion delegated by Congress to the Treasury under Loper Bright.

The European Health Data Space As A Compass For Academic/Industry Collaborations, Gabriela Lenarczyk, Hannah Louise Smith, W. Nicholson Price Ii

Articles

Against the backdrop of a deepening funding crisis for academic research in the US, how and when can closer relationships between academia and industry better support the research enterprise? Spector-Bagdady (2025) explores this potential response, bringing insight from genetic data sharing between academia and industry—and the benefits and challenges that arise from that sharing. She calls for a response that aligns academic institutional policy to support the realization of any public good, recognizing the pitfalls and problematic incentives that shape individual responses. It’s a timely call, and an attractive one in a time of urgent uncertainty about funding and support. …

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.

Periodic Adjustments And The Arm's Length Principle, Reuven S. Avi-Yonah

Articles

The Internal Revenue Service (IRS) recently issued AM 2025-001, whichrepresents a significant change in its interpretation of the periodic adjustment rules for transfers of intangibles within a multinational and forcost-sharing agreements.Arguably, this finally brings the IRS into compliancewith the “commensurate with income” language added to Code Sec. 482 in1986.

Should The United States Abandon Citizenship-Based Taxation?, Reuven S. Avi-Yonah

Articles

President Trump proposed during the election campaign to end the “doubletaxation” of American citizens living overseas.To which the answer is,what double taxation?Americans living overseas already benefit from three significant provisions thatin most cases prevent any double taxation, and because of these most of them donot have any U.S. tax liability.Those who do are typically wealthier, derive incomefrom investments or from high wages, and are not subject to foreign tax becausethey live in tax havens or in countries that do not tax rich immigrants on foreignsource income, and they do not have any income from their country of residence.

Tribute To Sally Katzen, Rachel Rothschild

Articles

I have been excitedly waiting for the opportunity to speak to you all about Sally tonight. I don't think you could find anyone more deserving of this award than she is. You have heard this evening about her extraordinary professional accomplishments and the indelible mark she has made on administrative law over the course of her career. But in addition to her achievements in government service and private practice, Sally will leave a lasting and significant legacy through the students that she taught at NYU. I hope I can do justice to the enormous role she has played in my …

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 …

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 …

How Design Thinking Can Help Lawyers Find Purpose In Work, Bridgette Carr, Vivek Sankaran

Other Publications

In the wake of significant government layoffs, increasing political instability and a justice system stretched to its limits, lawyers across the country are overwhelmed. Some were abruptly dismissed from their federal positions and are scrambling to find meaningful work. Others in legal aid and nonprofits are drowning under a surge of urgent cases, from housing crises to immigration battles. Even those in the private sector are grappling with how they can contribute to addressing the relentless wave of injustices unfolding around them. Lawyers everywhere are struggling. Those in the trenches are overwhelmed. Many of us feel helpless. And all too …

The Historical Evolution Of Corporate Social Responsibility: A Foreword To The Eli Guidance, Reuven S. Avi-Yonah

Other Publications

This issue includes the “ELI Report on Company Capital and Financial Accounting for Corporate Sustainability” and accompanying studies, including Anne Le Manh, https://doi.org/10.1515/ael-2021-0041, “Accounting Policies and Dividend Limitation: A European Comparison”, and country reports from Germany, Italy, France, Croatia, Japan, and the UK. The focus of the Report is on environmental, social and governance (ESG) considerations, which “concern broad matters pointing to the sustainable and responsible long-term relationship of companies with stakeholders, society and nature … In this context, an important and timely debate is ongoing as to how companies could and should be sustainable and responsible for the benefit …

Disappearing Data At The U.S. Federal Government, Janet W. Freilich, Nicholson Price Ii, Aaron S. Kesselheim

Other Publications

Health data hosted by the U.S. federal government have been disappearing. According to our analysis, between January 21 and February 11, 2025, the Centers for Disease Control and Prevention (CDC) removed 203 datasets (13% of its online datasets, a reduction from 1519 to 1316). The situation is dynamic; various datasets have been removed, restored, manipulated, or not posted as planned.

How Artificial Intelligence Will Shape Securities Regulation, Gabriel Rauterberg

Other Publications

How will the increasing prevalence and sophistication of artificial intelligence (AI) change the doctrine and practice of securities law? My main thesis is that it will push securities regulation toward a more systems-oriented approach. This approach will replace securities law's emphasis, in areas like manipulation, on forms of enforcement targeted at specific individuals and accompanied by punitive sanctions with a greater focus on ex ante rules designed to shape an ecology of actors and information.

Against Judicial Generalists, Matthew L.R. Fletcher

Other Publications

There is something irritatingly wrong with Indian law practice at the Supreme Court.

Oral argument at the Supreme Court is a bitterly unpleasant affair for Indigenous people and tribal advocates for a lengthy variety of reasons. It is canonical that tribal advocates must attempt to avoid Supreme Court review; the strategic thinking is that the Court is the last place an Indian tribe would ever want to be. No Indigenous person has argued a case before the Supreme Court since 2001, approaching a quarter century. Only a tiny handful of Indigenous people have ever clerked for a Supreme Court justice. …

Most-Favored-Nation Drug Pricing—How Courts Could Shape Future Health Regulation, Nicholas Bagley, Craig Garthwaite, Benedic Ippolito

Other Publications

The Trump administration recently issued an Executive Order aimed at delivering most-favored- nation (MFN) drug pricing to the US. The order instructs drug manufacturers to reduce the prices of brand-name drugs to match the lowest price among selected high-income countries. If drug makers do not make significant progress toward this goal, the administration will pursue several strategies to lower prices. Most notably, the Executive Order directs the Secretary of Health and Human Services (HHS) to propose a rule to impose MFN pricing. In all likelihood, the administration will revisit prior efforts to enact MFN pricing through the Center for Medicare …

Free To Be You But Not Me?, Leah Litman

Reviews

In Gendered Liberty, Prof. Laura Portuondo presents a doctrinal puzzle: While claims to individual liberty are in decline in some spaces, they are ascendant in others. As Portuondo describes things, constitutional law has become increasingly hostile to claims by people who seek to defy gendered stereotypes. That includes the women who, for whatever reason, do not want to become mothers when they are pregnant, as well as the women whose lives, health, or fertility would be in jeopardy if they became mothers. The Supreme Court overruled their claims to liberty in Dobbs v. Jackson Women’s Health Organization.