Law Commons^™

Empowering Ukraine’S First Legal Responders: Ukrainian-Us Collaboration And Clinics, Susan Felstiner, Davida Finger, Michelle Greenberg-Kobrin, Maria Tsypiashchuck

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At the onset of the full-scale Russian war of aggression against Ukraine, U.S. law clinic professors worked alongside the leadership of the Association of Legal Clinics of Ukraine. The mutual objective was to support Ukrainian law professors and facilitate the continued legal education of their students, particularly the acquisition of skills typically taught in law clinics. Ultimately, the online partnership that developed focused on skills training and included seven Ukrainian law schools, faculty from over six U.S. law schools and one private law firm, and USAID Justice for All Activity in Ukraine. The overall goals of this collaboration were to …

Detangling Knots In The Narratives: A Response To Theunis Roux, Aparna Chandra

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This article is part of a symposium on Theunis Roux's article titled 'Grand Narratives of Transition and the Quest for Democratic Constitutionalism in India and South Africa', which proposes two dominant narratives about the constitutional transitions in India and South Africa. The author focuses on Indian constitutional praxis to evaluate the claims of both. Part A engages with Roux’s version of the 'Liberal Progressive Narrative' and demonstrates what post-liberal accounts of the Indian constitutional transition offers that differs from the standard narrative as presented by Roux. Part B turns to the 'Culturalist Grand Narrative' and teases out the differences between …

Does The U.S. Have To Be A Tax Haven?, Reuven S. Avi-Yonah

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The United States is the world’s preeminent tax haven. Tax havens are defined as allowing secrecy and having low or zero tax rates; for nonresident aliens, the United States offers both.

The secrecy results from the fact that, in many U.S. states, it is possible to form a corporate entity without having to disclose information about the identity of the owner. This situation is beginning to change because of the Corporate Transparency Act, but the law has been challenged as unconstitutional. Even this would only apply for U.S. government nontax purposes. A nonresident alien who uses a U.S. limited liability …

Can Congress Give Unaffected Taxpayers Standing, Reuven S. Avi-Yonah

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A recurring problem in tax law arises when the IRS promulgates a regulation or a notice that is too favorable to taxpayers.1 The problem is that nobody has standing to challenge the regulation. The IRS cannot challenge its own regulation, and taxpayers affected by the regulation have no interest in challenging it (and even if they did, they cannot show a concrete injury sufficient to establish standing). Congress may intervene, but that is rare for a taxpayer-favorable regulation (indeed, Congress sometimes intervenes to block IRS attempts to roll back its own regulations). Taxpayers unaffected by the regulation do not have …

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 …

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 …

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 …

Can The Economic Substance Doctine Be Revived?, Reuven S. Avi-Yonah

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In two recent instances, the IRS has asserted the economic substance doctrine (ESD) to challenge transactions that comply with the literal text of the code. First, in Liberty Global, the IRS successfully asserted the ESD to deny tax benefits claimed by Liberty Global — namely, a section 245A deduction for a dividend out of foreign earnings that would normally be subject to global intangible low-taxed income — by relying on a mistake in effective dates under the Tax Cuts and Jobs Act. In granting summary judgment, the district court held that the doctrine looks to whether the tax benefits achieved …

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 …

Where Is China Now On Pillar 2?, Reuven S. Avi-Yonah

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China has been relatively quiet about pillar 2 of the G20/OECD base erosion and profit-shifting 2.0 project. In a recent Tax Notes article, Xiaoli Ortega wrote:

Will China join the global tax reform club? If so, when? Although the Chinese government has made repeated positive statements about the importance of the global minimum tax reform, it has not clarified when it would modify its domestic tax laws to incorporate the pillar 2 rules. However, this does not mean that China is not preparing itself for the reform. Recall that on August 1, 2022, the State Taxation Administration issued a governmental …

The Triumph Of Tax Textualism, Reuven S. Avi-Yonah

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In Varian Medical Systems, the Tax Court held in a unanimously reviewed opinion that the taxpayer was entitled to take a section 245A deduction for an amount treated as a dividend under section 78. Section 78 provides that deemed paid foreign taxes are treated as dividends received for foreign tax credit purposes, thus grossing up the amount of the dividend by the foreign taxes attributable to it before granting the FTC. This provision is needed because otherwise the taxpayer would enjoy both a deduction and a credit for the same foreign tax. Section 245A, however, eliminates the tax 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.

Living The Good Life In The Anthropocene, Karrigan Bork, Karen Bradshaw, Rebecca Bratspies, Cinnamon Carlarne, Bruce Carpenter, Robin Kundis Craig, Sarah Fox, Josh Galperin, Francis Hicks, Keith Hirokawa, Kevin Lynch, Ruhan S. Nagra, Michele Okoh, Jessica Owley, Amber Polk, Melissa Powers, Shannon Roesler, J.B. Ruhl, Danielle Stokes, Anastasia Telesetsky

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The Stockholm Resilience Centre has concluded that the number of "planetary boundaries" we are crossing has increased from three in 2009, when the Centre's researchers first introduced the concept, to six in 2023. Crossing these boundaries means humans are changing basic attributes of planetary systems to the point of risking the future of civilization. And the distinction between "safe" and "just" planetary boundaries raises questions regarding how to conceptualize the "good life." In this latest in a biannual series of essays, members of the Environmental Law Collaborative explore conceptions of the "good" as well as the various elements necessary to …

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 …

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 …

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 …

Blurring Boundaries: A Proposed Research Agenda For Ethical, Legal, Social, And Historical Studies At The Intersection Of Infectious And Genetic Disease, Seethal Jose, Juli Bollinger, Gail Geller, Jeremy Greene, Leslie Meltzer Henry, Brian Hutler, Eric Thomas Juengst, Jeffrey Kahn, Anna Mastroianni, Graham Mooney

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Contemporary understanding of the mechanisms of disease increasingly points to examples of “genetic diseases” with an infectious component and of “infectious diseases” with a genetic component. Such blurred boundaries generate ethical, legal, and social issues and highlight historical contexts that must be examined when incorporating host genomic information into the prevention, outbreak control, and treatment of infectious diseases.

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 …

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 …

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 …

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 …

Sourcing Derivatives: Time To Reverse The Rule?, Reuven S. Avi-Yonah

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In their excellent Tax Notes article on the application of withholding taxes on derivatives, Lorenz F. Haselberger and Michael B. Shulman write that:

A taxpayer entering into a derivative may derive income of a kind that is different from the kind of income that would have been realized had the taxpayer instead acquired the underlying asset, resulting in different U.S. withholding tax treatment.

For example, when a foreign taxpayer enters into a swap referencing an equity security or interest rate, amounts it receives that correspond to dividends or interest generally are characterized as periodic payments on a financial contract rather …

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 …

Once More: Digital Services Taxes Should Be Creditable, Reuven S. Avi-Yonah

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In a previous column, I argued that digital services taxes should be creditable as in-lieu-of taxes under section 903. A new analysis by Jane Gravelle sheds further light on this topic but does not change the outcome.

Gravelle makes three arguments against the creditability of DSTs. First, she argues that the whole concept underlying both pillar 1 and DSTs (allocating value to market jurisdictions) is wrong, and therefore they cannot be justified. Second, she argues that DSTs are passed on in full to consumers and that this precludes creditability. Finally, she argues that DSTs are discriminatory excise taxes on U.S. …

Defining Relevant Markets In Digital Ecosystems, Daniel A. Crane

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Traditional market definition focuses on the substitutability of two products or geographies. In digital ecosystems, competition often occurs in important ways that elide definition in conventional substitutability terms. This Article considers three kinds of economic rivalry that do not fit the conventional market definition mold: (1) Single-side competition: In two sided markets, firms may compete on just one side of the market. For example, Google and Facebook compete for the same advertisers, but their users on the other side of the market do not necessarily think of the offerings (social media and universal search) as substitutes; (2) Ecosystem competition: Technology …

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 …