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Articles 1 - 30 of 52
Full-Text Articles in Law
Attacking Profit Shifting: The Approach Everyone Forgets, Jeffrey M. Kadet
Attacking Profit Shifting: The Approach Everyone Forgets, Jeffrey M. Kadet
Articles
No abstract provided.
Expansion Of The Profit-Split Method: The Wave Of The Future, Jeffrey M. Kadet
Expansion Of The Profit-Split Method: The Wave Of The Future, Jeffrey M. Kadet
Articles
Recognizing the reality that multinational corporations are centrally managed and not groups of entities that operate independently of one another, the OECD base erosion and profit-shifting project is considering expanded use of the profit-split method. This article provides background on why expanded use of the profit-split method is sorely needed. In particular, resource-constrained tax authorities in many countries are unable to administer or intelligently analyze and contest transfer pricing results presented by multinational groups. Most importantly, this article suggests a simplified profit-split approach using set concrete and objective allocation keys for commonly used business models that should be welcomed by …
Will Bringing Sales Onshore In The U.K. Lead To Higher Taxes?, Tommaso Faccio, Jeffrey M. Kadet
Will Bringing Sales Onshore In The U.K. Lead To Higher Taxes?, Tommaso Faccio, Jeffrey M. Kadet
Articles
The authors discuss changes to the scope of the U.K. royalty withholding tax announced in the 2016 U.K. budget, which, along with the new diverted profits tax, could cause significant increases in U.K. tax paid by multinationals. As will be seen from the example set out in the article, the U.K. royalty withholding tax announced in the 2016 U.K. budget is a major portion of this increase. This will have a major impact on the economics of profit-shifting structures involving revenues that require on-the-ground sales, marketing, and other support activities in the U.K. The U.K.’s actions should be closely examined …
Fair Approaches For Taxing Previously Untaxed Foreign Income, Jeffrey M. Kadet
Fair Approaches For Taxing Previously Untaxed Foreign Income, Jeffrey M. Kadet
Articles
In connection with any transition to a new international tax system, we need an approach that effectively deals with the trillions of dollars of previously untaxed foreign income held by CFCs. There is logic and fairness in applying a rate on those earnings that is less than the 35 percent home country rate because the rules of the game are being changed significantly.
Many U.S. multinationals have had legitimate commercial reasons for retaining their earnings overseas. For these, I can happily accept whatever rate Congress chooses, whether it is at the lower 3.5 percent level of TRA 2014, the 14 …
The Overlooked French Influence On The Intellectual Property Clause, Sean M. O'Connor
The Overlooked French Influence On The Intellectual Property Clause, Sean M. O'Connor
Articles
The Intellectual Property Clause (“IP Clause”) of the US Constitution has long been a puzzle for courts and commentators. It authorizes Congress to secure exclusive property rights for authors and inventors, but it does not use the terms “patent” or “copyright,” and its objects of “Science” and “useful Arts” do not cleanly map onto the subject matter of current patent and copyright systems.
As the Supreme Court has noted, under popular usage of the terms “arts” and “science,” one would expect patents to promote science and copyrights to promote arts, yet we know from the historical record that exactly the …
Coming Of Age: Innovation Districts And The Role Of Law Schools, Jennifer S. Fan
Coming Of Age: Innovation Districts And The Role Of Law Schools, Jennifer S. Fan
Articles
New urban models, dubbed “innovation districts” are gaining traction in entrepreneurial-focused areas across the United States. This article begins by defining what innovation districts are. It then examines the potential role that law schools, together with technology transfer offices, can play as innovation cultivators within such districts. Specifically, it looks at three potential models that law schools can consider when contemplating a relationship with the technology transfer office within a university. Integrating a clinic and technology transfer office within an innovation district does not come without its challenges, however. Accordingly, this article will suggest ways for transactional law clinics to …
Taxation And Surveillance: An Agenda, Michael Hatfield
Taxation And Surveillance: An Agenda, Michael Hatfield
Articles
Among government agencies, the IRS likely has the surest legal claim to the most information about the most Americans: their hobbies, religious affiliations, reading activities, travel, and medical information are all potentially tax relevant. Privacy scholars have studied the arrival of Big Data, the internet-of-things, and the cooperation of private companies with the government in surveillance, but neither privacy nor tax scholars have considered how these technological advances should impact the U.S. tax system. As government agencies and private companies increasingly pursue what has been described as the “growing gush of data,” the use of these technologies in tax administration …
The Struggle To Bury Pre-Existing Condition Consideration, Sallie Thieme Sanford Sanfords@Uw.Edu
The Struggle To Bury Pre-Existing Condition Consideration, Sallie Thieme Sanford Sanfords@Uw.Edu
Articles
As of January 1, 2014, applicants for comprehensive health insurance do not face questions about their health history. The ACA prohibits health insurers from considering an individual’s health history in determining whether to sell that person a comprehensive health insurance policy, the policy’s price, or its coverage terms. Pre-existing condition (PEC) consideration is, in this crucial context, dead. Few will mourn its passing. This legislative milestone marks a significant step towards the goal of a healthier population. While celebrating this achievement, however, in this article I argue that we ought to recall the context of PEC consideration, its practical application, …
What Patients With Disability Teach Us About The Everyday Ethics Of Healthcare, Elizabeth Pendo
What Patients With Disability Teach Us About The Everyday Ethics Of Healthcare, Elizabeth Pendo
Articles
In Healers: Extraordinary Clinicians at Work, by David Schenck and Dr. Larry Churchill, and in What Patients Teach: The Everyday Ethics of Health Care, their follow-up with Joseph Fanning, the authors look at the everyday experience of health care and the relationships that shape it. They call attention to the ethical dimensions of the clinical encounter and the hope for, and desirability of, a genuine human engagement between the clinician and the patient. In their view, healers are clinicians who cultivate a therapeutic relationship with their patients. They identify a set of skills that accomplish this, including welcoming …
In Vitro Fertilization And The Law: How Legal And Regulatory Neglect Compromised A Medical Breakthrough, Steve P. Calandrillo, Chryssa V. Deliganis
In Vitro Fertilization And The Law: How Legal And Regulatory Neglect Compromised A Medical Breakthrough, Steve P. Calandrillo, Chryssa V. Deliganis
Articles
The rise of assisted reproductive technology like in vitro fertilization (“IVF”) as a method of human reproduction represents a remarkable medical achievement. Live births and success rates have increased dramatically in the past decade, so much so that many fertility clinics now “guarantee” a baby to clients who sign up.
But with successes come inevitable downsides. Everyone knows that the price tag is steep, but given the demand, relatively few individuals are deterred. More insidious are the increased birth-defect risks associated with reproductive technologies. For some time it was assumed that these risks were due to the fact that individuals …
Frenemies Of The Court: The Many Faces Of Amicus Curiae, Helen A. Anderson
Frenemies Of The Court: The Many Faces Of Amicus Curiae, Helen A. Anderson
Articles
Ask any lawyer what an "amicus curiae" is, and you will be told that the term means "friend of the court." The term has positive, even warm, connotations. Amicus briefs provide additional information or perspectives to assist courts in deciding issues of public importance. Interest groups, law professors, and politically engaged lawyers are happy to participate in important cases through such briefs. Amicus curiae participation is defended as democratic input into what is otherwise not a democratic branch of government.
Yet, amici curiae—nonparties who are nevertheless advocates, who are not bound by rules of standing and justiciability, or even rules …
Gayffirmative Action: The Constitutionality Of Sexual Orientation-Based Affirmative Action Policies, Peter Nicolas
Gayffirmative Action: The Constitutionality Of Sexual Orientation-Based Affirmative Action Policies, Peter Nicolas
Articles
Twenty-five years ago, the U.S. Supreme Court established a consistency principle in its race-based equal protection cases. That principle requires courts to apply the same strict scrutiny to racial classifications designed to benefit racial minorities—such as affirmative action policies—as they do to laws invidiously discriminating against them. The new consistency principle, under which discrimination against whites is subject to strict scrutiny, conflicted with the Court's established criteria for declaring a group to be a suspect or quasi-suspect class entitled to heightened scrutiny, which focused on such considerations as the history of discrimination against the group and its political powerlessness.
As …
Rulemaking As Legislating, Kathryn A. Watts
Rulemaking As Legislating, Kathryn A. Watts
Articles
The central premise of the nondelegation doctrine prohibits Congress from delegating its Article I legislative powers. Yet Congress routinely delegates to agencies the power to promulgate legislative rules—rules that carry the force and effect of law just as statutes do. Given this tension between the nondelegation doctrine and the modern regulatory state, some scholars have attacked the nondelegation doctrine as fictional.
Little scholarly attention, however, has been given to considering how the central premise of the nondelegation doctrine coheres with—or fails to cohere with—administrative law as a whole. This Article takes up that task, exploring what might happen to administrative …
Leaky Covenants-Not-To-Compete As The Legal Infrastructure For Innovation, Robert W. Gomulkiewicz
Leaky Covenants-Not-To-Compete As The Legal Infrastructure For Innovation, Robert W. Gomulkiewicz
Articles
The flow of information that naturally occurs when employees change firms plays a vital role in spurring innovation. Numerous law review articles have explored how covenants-not-to-compete (“non-competes”) can impede this important information flow. In 1999 Professor Ronald Gilson published an influential article concluding that California’s ban on non-competes led to the rise of California’s Silicon Valley and the comparative decline of Massachusetts’ high technology corridor known as Route 128. Despite the scholarly praise for California’s approach, most states enforce non-competes that are reasonable.
That may change, however, because many states are re-evaluating their non-compete laws to avoid Gilson’s cautionary tale …
Financing Innovation: Legal Development Of Intellectual Property As Security In Financing, 1845–2014, Xuan-Thao Nguyen
Financing Innovation: Legal Development Of Intellectual Property As Security In Financing, 1845–2014, Xuan-Thao Nguyen
Articles
There is a need for both traditional and online lenders to appreciate the intellectual property assets held by small businesses. The intellectual property assets should be included in the analytics in assessing the overall health of a business seeking a loan or a line of credit for its new innovative product, idea, or vision. The Article ends with a brief conclusion that in order to maintain the United States’ innovative edge, attention to the access to financing by small businesses must be at the center of the discussion, and intellectual property must be recognized as part of that center.
"Driving While Black" Redux: Illuminating New And Myriad Aspects Of Auto(Matic) Inequality, Mario Barnes
"Driving While Black" Redux: Illuminating New And Myriad Aspects Of Auto(Matic) Inequality, Mario Barnes
Articles
Reviewing Charles R. Epp, Steven Maynard-Moody, and Donald Haider-Markel, Pulled Over: How Police Stops Define Race and Citizenship (2014).
Corporate Social Responsibility Versus Business And Human Rights: Bridging The Gap Between Responsibility And Accountability, Anita Ramasastry
Corporate Social Responsibility Versus Business And Human Rights: Bridging The Gap Between Responsibility And Accountability, Anita Ramasastry
Articles
This article explores the evolution of business and human rights (BHR) from a lawyer’s perspective and examines how it is contextually and conceptually different from corporate social responsibility (CSR) in its aims and ambitions. While CSR emphasizes responsible behavior, BHR focuses on a more delineated commitment in the area of human rights. BHR is, in part, a response to CSR and its perceived failure. This has led to a gap with two disciplines or strands of discourse that are diverging rather than converging. This article explores how the quest for accountability shapes a very different narrative for BHR, which takes …
Book Review, Mario L. Barnes
Book Review, Mario L. Barnes
Articles
Reviewing Pulled Over: How Police Stops Define Race and Citizenship by Charles Epp, Steven Maynard-Moody, and Donald Haider (2014).
Institutionalizing The Uspto Law School Clinic Certification Program For Transactional Law Clinics, Jennifer S. Fan
Institutionalizing The Uspto Law School Clinic Certification Program For Transactional Law Clinics, Jennifer S. Fan
Articles
With 188 transactional law clinics nationwide and the United States Patent and Trademark Office (“USPTO”) Law School Clinic Certification Program (“Program”) recently established as a statutory program of the USPTO, this Article argues that every transactional clinic that works on trademark and patent applications should apply to become part of the Program. In satisfying the participation requirements of the Program, transactional law clinics will usher in a new, uniform way to educate aspiring intellectual property attorneys. As a result, the law students will not only be “practice ready,” but also more effective attorneys once they are in practice. Participating in …
Water Rights, Water Quality, And Regulatory Jurisdiction In Indian Country, Robert T. Anderson
Water Rights, Water Quality, And Regulatory Jurisdiction In Indian Country, Robert T. Anderson
Articles
In the seminal Indian water rights case, Winters v. United Slates (1908), the Court posed this question: "The Indians had command of the lands and the waters-command of all their beneficial use, whether kept for hunting, 'and grazing roving herds of stock,' or turned to agriculture and the arts of civilization. Did they give up all this?" The Court's answer was no, and since then a large body of law has developed around Indian water rights, although the primary focus has been on the amount of water reserved for various tribal purposes. While Indian nations use property rights theories to …
Beyond Respectability: Dismantling The Harms Of "Illegality", Angélica Cházaro
Beyond Respectability: Dismantling The Harms Of "Illegality", Angélica Cházaro
Articles
Current pro-immigrant reform efforts focus on legalization. Proposals seek to place as many of the eleven million undocumented people in the United States as possible on a “path to earned citizenship.” However, these reform efforts suffer from a significant and underappreciated blind spot: the strategies used to advocate legalization harm those to whom the path to citizenship is barred—such as those with prior deportation orders, prior criminal convictions, and those who have yet to arrive. The problem begins with rhetoric: in making the push for legalization, immigrant rights groups have deployed imagery of the undocumented as law-abiding, hard-working, and family-oriented—the …
Push, Pull, And Spill: A Transdisciplinary Case Study In Municipal Open Government, Jan Whittington, Ryan Calo, Mike Simon, Jesse Woo, Meg Young, Perter Schmiedeskamp
Push, Pull, And Spill: A Transdisciplinary Case Study In Municipal Open Government, Jan Whittington, Ryan Calo, Mike Simon, Jesse Woo, Meg Young, Perter Schmiedeskamp
Articles
Municipal open data raises hopes and concerns. The activities of cities produce a wide array of data, data that is vastly enriched by ubiquitous computing. Municipal data is opened as it is pushed to, pulled by, and spilled to the public through online portals, requests for public records, and releases by cities and their vendors, contractors, and partners. By opening data, cities hope to raise public trust and prompt innovation. Municipal data, however, is often about the people who live, work, and travel in the city. By opening data, cities raise concern for privacy and social justice.
This article presents …
Unearthing The Lost History Of Seminole Rock, Sanne H. Knudsen, Amy J. Wildermuth
Unearthing The Lost History Of Seminole Rock, Sanne H. Knudsen, Amy J. Wildermuth
Articles
This Article documents the untethering of Bowles v. Seminole Rock [325 U.S. 410 (1945)]. It shows how, in the 1960s and 1970s, alongside an expanding administrative state, the doctrine transformed into a more mechanical and highly deferential form of agency deference. It further shows that this transformation is marked by a consistent lack of scholarly or judicial reflection on its underpinnings.
In doing so, this Article provides new depth to the emerging critiques of Seminole Rock deference and lends critical support for reexamination of the doctrine.
Lessons From The Lost History Of Seminole Rock, Sanne H. Knudsen, Amy J. Wildermuth
Lessons From The Lost History Of Seminole Rock, Sanne H. Knudsen, Amy J. Wildermuth
Articles
This Article informs the current debate over Auer v. Robbins (519 U.S. 452 (1997)) deference by exploring the roots of the Bowles v. Seminole Rock decision (325 U.S. 410 (1945)) and its subsequent reinterpretation through a creative approach. To do so, this Article offers a series of hypothetical opinions applying the various historical interpretations of Seminole Rock to a single set of facts.
Part I places Seminole Rock in the constellation of deference doctrines in administrative law so that one can easily understand what the doctrine is and when it applies. Part II examines the transformation of Seminole Rock through …
Adversarial Science, Sanne H. Knudsen
Adversarial Science, Sanne H. Knudsen
Articles
Adversarial science—sometimes referred to as "litigation science" or "junk science"—has a bad name. It is often associated with the tobacco industry's relentless use of science to manufacture uncertainty and avoid liability. This Article challenges the traditional conception that adversarial science should be castigated simply because it was developed for litigation. Rather, this Article urges that adversarial science is an important informational asset that should, and indeed must, be embraced.
In the ecological context, adversarial science is vital to understanding the ecological effects of long-term toxic exposure. Government trustees and corporate defendants fund intensive scientific research following major ecological disasters like …
Can Americans Resist Surveillance?, Ryan Calo
Can Americans Resist Surveillance?, Ryan Calo
Articles
This Essay analyzes the ability of everyday Americans to resist and alter the conditions of government surveillance. Americans appear to have several avenues of resistance or reform. We can vote for privacy-friendly politicians, challenge surveillance in court, adopt encryption or other technologies, and put market pressure on companies not to cooperate with law enforcement.
In practice, however, many of these avenues are limited. Reform-minded officials lack the capacity for real oversight. Litigants lack standing to invoke the Constitution in court. Encryption is not usable and can turn citizens into targets. Citizens can extract promises from companies to push back against …
Robotics And The Lessons Of Cyberlaw, Ryan Calo
Robotics And The Lessons Of Cyberlaw, Ryan Calo
Articles
Two decades of analysis have produced a rich set of insights as to how the law should apply to the Internet’s peculiar characteristics. But, in the meantime, technology has not stood still. The same public and private institutions that developed the Internet, from the armed forces to search engines, have initiated a significant shift toward developing robotics and artificial intelligence.
This Article is the first to examine what the introduction of a new, equally transformative technology means for cyberlaw and policy. Robotics has a different set of essential qualities than the Internet and accordingly will raise distinct legal issues. Robotics …
Private Data, Public Safety: A Bounded Access Model Of Disclosure, Mary D. Fan
Private Data, Public Safety: A Bounded Access Model Of Disclosure, Mary D. Fan
Articles
A growing volume of crucial information for protecting public health and safety is controlled by private-sector entities. The data are private in two senses—both proprietary and secluded from scrutiny. Controversies over corporate secrecy, such as sealed settlements that hide deaths due to product defects or nondisclosure of potentially hazardous substances, illustrate how corporate privacy and public safety can conflict.
Courts are conflicted about when to defer to companies’ claims of the right to keep information private when important public interests are implicated by the data that companies refuse to disclose.
This Article proposes allowing what it terms “bounded access” to …
The Promise And Peril Of The Anti-Commandeering Rule In The Homeland Security Era: Immigrant Sanctuary As An Illustrative Case, Trevor George Gardner
The Promise And Peril Of The Anti-Commandeering Rule In The Homeland Security Era: Immigrant Sanctuary As An Illustrative Case, Trevor George Gardner
Articles
This brief narrative captures the second wave of “immigrant sanctuary”—a term used to describe the state and local government practice of restricting police departments from participation in immigration enforcement. The immigrant sanctuaries of the Homeland Security era are of unique significance given the ongoing dialogue among legal scholars regarding the significance of local law enforcement participation in national and domestic security administration after 2001, as well as the legal framework structuring cooperative security governance.
Despite the broad powers wielded by the federal government in security administration, the Supreme Court’s holding in Printz v. United States serves as a substantial check …
In The Stewardship Of Business Model Innovation, Robert W. Gomulkiewicz
In The Stewardship Of Business Model Innovation, Robert W. Gomulkiewicz
Articles
Patent law scholars often criticize the Federal Circuit because they think it favors patentees. The Supreme Court has reinforced this scholarly critique by taking an usually large number of patent cases in recent years, often reversing the Federal Circuit and admonishing it to avoid patent law exceptionalism.
The Federal Circuit’s perceived patent law exceptionalism motivated Professor Xuan-Thao Nguyen to write her article In the Name of Patent Stewardship: The Federal Circuit’s Overreach into Commercial Law. Professor Nguyen’s concerns about damage to commercial law are not trifles. When it comes to the stewardship of our information economy, the laws that …