Law Commons^™

Answering The Right Questions In Rawat, Reuven S. Avi-Yonah

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The Rawat case, which is currently before the D.C. Circuit, has generated a huge amount of commentary. The problem is that much of this commentary has focused on the partnership tax issues in the case and not on the international tax issue, which is the source of the relevant income. In my opinion, the international tax issue should be dispositive.

Should Digital Services Taxes Be Creditable?, Reuven S. Avi-Yonah

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The impending collapse of pillar 1 of the OECD’s base erosion and profit-shifting 2.0 project means that many countries are likely to join Austria, France, Italy, Spain, and the United Kingdom in enacting digital services taxes. There is a moratorium on new DSTs that has been extended until the end of 2024, but any extension beyond that is unlikely because the elimination of DSTs was premised on pillar 1 coming into effect, and that cannot happen without U.S. ratification of the multilateral tax convention (MLC). It is safe to predict that there will not be 67 votes in the Senate …

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

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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?

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

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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 …

Feedback Loops: Feedback Machines, Patrick Barry

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Yes, AI raises serious concerns about bias, privacy, copyright infringement, environmental sustainability, and a whole bunch of other important topics. But if you are looking for a positive use case - and a new way to approach professional development - try asking chatgpt or some other AI chatbot for feedback, especially on something you've written.

Is You Is Or Is You Ain’T My Client? Navigating The Mysteries Of Prospective And Organizational Representation, Leonard Niehoff

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Many years ago, I was trying a civil case that had stretched on for weeks in a federal court in Detroit. The counsel tables for both parties were covered with briefs, coffee cups, memoranda, books, water pitchers, examination outlines, yellow writing pads, and all the other litter that inevitably piles up during long trials. It appeared that we had moved in, just as at our actual homes it appeared that we had moved out.

Consent Searches As Police Violence, David B. Owens

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Henderson and Krishnamurthi’s new paper—A Wolf in Sheep’s Attire: How Consent Enfeebles Our Fourth Amendment (hereinafter Sheep’s Attire)— powerfully advocates for reform to the consent doctrine. The paper is thoughtful, well-intentioned, and useful for challenging core assumptions about the law to help us evaluate how it should work. The piece is also fun to read as the authors breathe real-world insight into old doctrine. In the end, though the article flirts with a categorical rule about consent searches, and while the authors “think it categorically unreasonable for police to ask individuals to forgo their rights” in the context …

Founder Worship, Effective Altruism, And Corporate Governance, Jennifer S. Fan, Xuan-Thao Nguyen

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Founders are the heart of any startup. Oftentimes, they are given considerable latitude in managing a company, particularly if they are hailed as a visionary founder in a pathbreaking new industry. Additionally, it is assumed that underpinning their actions is the desire to do good. Unfortunately, sometimes this leads to what we term founder worship where the promise of the founder and the innovation may lead to perverse outcomes because too much control is ceded to the founder and there is a lack (or sometimes complete absence of) corporate governance. When unlimited control is coupled with "do gooderism," which in …

The Next Generation, Jeremiah Chin

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What would the law look like if we let children remake it? Laws govern, classify, and circumscribe children who inherit the law and its consequences. Discourses of power invoke children as rhetorical strategies to gain political favor or obviate a position—yet children are uncritically excluded from participating in the systems that control them. Children are subjected to the laws and objects of legislation, but denied the rights, autonomy, or authority to participate in the making of law and policy. Even the conceptualization of the constitutional rights of children is treated as an assumption, ill-defined and under theorized by traditional legal …

America's Next "Stop Model!": Model Deletion, Jevan Hutson, Ben Winters

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This Essay explores the emergence of model deletion- the compelled destruction or dispossession of certain data, algorithms, models, and associated work products created or shaped by illegal means- as a remedy, right, and requirement for harmful applications of Al and ML systems. Part I examines model deletion's emergence as a consumer protection remedy and its conception as a positive right and regulatory requirement. Part II considers the constellation of federal and state actors, such as federal and state enforcement agencies and legislative bodies, who might seek model deletion to address particular Al and ML harms. Part III underscores the need …

The Meme Stock Fenzy: Origins And Implications, Dhruv Aggarwal, Albert H. Choi, Yoon-Ho Alex Lee

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In 2021, several publicly traded companies, such as GameStop, Bed Bath & Beyond, and AMC, became “meme stocks,” experiencing a sharp rise in their stock prices through a dramatic influx of retail investors into their shareholder base. Analyses of the meme stock surge and its implications for corporate governance have focused on the idiosyncratic creation of online communities around particular stocks during the COVID-19 pandemic. In this Article, we argue that the emergence of meme stocks is part of longer-running and more structural digital transformations in trading, investing, and governance. On the trading front, the abolition of commissions by major …

Research Access To Social Media Data: Lessons From Clinical Trial Data Sharing, Christopher J. Morten, Gabriel Nicholas, Salomé Vilgoen

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For years, social media companies have sparred with lawmakers over how much independent access to platform data they should provide researchers. Sharing data with researchers allows the public to better understand the risks and harms associated with social media, including areas such as misinformation, child safety, and political polarization. Yet researcher access is controversial. Privacy advocates and companies raise the potential privacy threats of researchers using such data irresponsibly. In addition, social media companies raise concerns over trade secrecy: the data these companies hold and the algorithms powered by that data are secretive sources of competitive advantage. This Article shows …

Rethinking Innovation At Fda, Rachel E. Sachs, Nicholson Price, Patricia J. Zeitler

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In several controversial drug approval decisions in recent years, the Food & Drug Administration (“FDA”) has publicly justified its decision partly on the ground that approving the drugs in question would support innovation in those fields going forward. To some observers, these arguments were surprising, as the Agency’s determination whether a drug is “safe” and “effective” does not seem to depend on whether its approval also supports innovation. But FDA’s use of these innovation arguments in drug approval decisions is just one example of the ways in which the Agency has come to make many innovation-related judgments as part of …

Sins And Omissions: Slavery And The Bill Of Rights, Richard Primus

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According to the conventional story, the Constitutional Convention declined to include a bill of rights in the Constitution because it trusted the enumeration of congressional powers to do the necessary work of limiting the federal government. That conventional story is historically unfounded. It is not supported by contemporary evidence, and it was roundly disbelieved at the time. Although it is not possible to know for certain why (really, for what mix of reasons) the Framers omitted a bill of rights, it seems likely that one major reason was that formulating a bill of rights would have provoked a bitter fight …

Whither Lob?, Reuven S. Avi-Yonah

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On January 1, 2024, the 1979 tax treaty between the United States andHungary was officially terminated.A revised treaty was signed in 2010but was never ratified by the United States, and it is unlikely that it willcome into effect any time soon.This situation is an anomaly because the United States has tax treaties withmost other members of the European Union (EU) and the Organisation forEconomic Co-operation and Development (OECD). Why did the UnitedStates terminate the treaty in July 2022?

Truth Bounties: A Market Solution To Fake News, Yonathan A. Arbel, Michael D. Gilbert

Articles

False information poses a threat to individuals, groups, and society. Many people struggle to judge the veracity of the information around them, whether that information travels through newspapers, talk radio, TV, or social media. Concerned with the spread of misinformation and harmful falsehoods, much of the policy, popular, and scholarly conversation today revolves around proposals to expand the regulation of individuals, platforms, and the media. While more regulation may seem inevitable, it faces constitutional and political hurdles. Furthermore, regulation can have undesirable side effects and be ripe for abuse by powerful actors, public and private.

This Article presents an alternative …

Damages: Symposium Presentation Of Anthony Sebok, Anthony J. Sebok

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No abstract provided.

Antisocial Innovation, Christopher Buccafusco, Samuel N. Weinstein

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Innovation is a form of civic religion in the United States. In the popular imagination, innovators are heroic figures. Thomas Edison, Steve Jobs, and (for a while) Elizabeth Holmes were lauded for their vision and drive, and seen to embody the American spirit of invention and improvement. For their part, politicians rarely miss a chance to trumpet their vision for boosting innovative activity. Popular and political culture alike treat innovation as an unalloyed good. And the law is deeply committed to fostering innovation, spending billions of dollars a year to make sure society has enough of it. But this sunny …

Dobbs And Democracy, Melissa Murray, Katherine A. Shaw

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In Dobbs v. Jackson Women’s Health Organization, Justice Alito justified the decision to overrule Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey with an appeal to democracy. He insisted that it was “time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” This invocation of democracy had undeniable rhetorical power: it allowed the Dobbs majority to lay waste to decades’ worth of precedent, while rebutting charges of judicial imperialism and purporting to restore the people’s voices. This Article interrogates Dobbs’s claim to vindicate principles of democracy, examining both the intellectual pedigree …

Regulating Driving Automation Safety, Matthew Wansley

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Over forty thousand people die in motor vehicle crashes in the United States each year, and over two million are injured. The careful deployment of driving automation systems could prevent many of these deaths and injuries, but only if it is accompanied by effective regulation. Conventional vehicle safety standards are inadequate because they can only test how technology performs in a controlled environment. To assess the safety of a driving automation system, regulators must observe how it performs in a range of unpredictable, real world edge cases. The National Highway Traffic Safety Administration (NHTSA) is trying to adapt by experimenting …

Antitrust Regulation Of Copyright Markets, Jacob Noti-Victor, Xiyin Tang

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Late last year, a federal court sided with the Department of Justice and blocked the planned merger of book publishers Simon & Schuster and Penguin Random House. The decision was a rare collision between antitrust law and the deeply consolidated copyright content industries. Over the course of the past decade, acquisitions and mergers in the recording, music publishing, and audiovisual space have left just a handful of juggernaut content producers in their wake. Moreover, new technology companies that have entered the content-creation and distribution markets have begun to leverage their scale to further their own industry consolidation.

This Article examines …

Religious Clause Challenges To Early Abortion Bans, Caroline Mala Corbin

Articles

The substantive due process right to abortion is gone. But other parts of the Constitution may also protect women’s right to control their bodies and live as equals in the United States. This Essay addresses what role the two religion clauses may play in advancing reproductive autonomy. Because religion and reproduction are intertwined, the religion clauses may provide some measure of constitutional protection.

The Establishment Clause bars the government from imposing religion onto those who do not share it. It also forbids the government from taking sides in theological disputes. Early abortion bans not only favor one religious belief on …

Reflections On Corporate Governance At Work, Margaret Blair, Matthew Bodie, June Carbone, Scott Dewey, George S. Georgiev, Grant Hayden, Claire Hill, Brett Mcdonnell, Sanjukta Paul, Silvie Rohr, Natalya Shnitser, Aaron Sojourner, Alvin Velazquez

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No abstract provided.

What Is The Goal Of Health Insurance Reform?, Gabriel Scheffler

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No abstract provided.

Truth Bounties: A Market Solution To Fake News, Yonathan A. Arbel, Michael D. Gilbert

Articles

False information poses a threat to individuals, groups, and society. Many people struggle to judge the veracity of the information around them, whether that information travels through newspapers, talk radio, TV, or social media. Concerned with the spread of misinformation and harmful falsehoods, much of the policy, popular, and scholarly conversation today revolves around proposals to expand the regulation of individuals, platforms, and the media. While more regulation may seem inevitable, it faces constitutional and political hurdles. Furthermore, regulation can have undesirable side effects and be ripe for abuse by powerful actors, public and private.

This Article presents an alternative …

A Model Defense Of Due Process Balancing, Kyron J. Huigens

Articles

Judicial balancing has been subjected to a standard list of objections for decades, without anyone's offering a comprehensive and persuasive response. This Article fills that gap. Balancing is not embedded in an invidious instrumentalism, such as utilitarianism, that saps law of its moral salience; it does not depend on the quantification or commensuration of manifestly qualitative legal interests; it is not arbitrary, result-oriented, or mere opinion; it does not invade the province of the legislature; and--most importantly--it does not risk balancing constitutional rights away by treating them as mere interests.

The defense consists of a model. Models do not prove; …

Sails Symposium Launch On International Law Scholarship: What We Write, Where We Publish, And Why It Matters, Kathleen Claussen, Melissa J. Durkee, Rebecca Ingber, Steven Arrigg Koh

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No abstract provided.

Making Sense Of Abatement As A Tort Remedy, Anthony J. Sebok

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Controversy over public nuisance in recent high profile cases invites the question of whether, and to what extent, it is limited by its roots in tort law. This article, which was prepared for the 2023 Clifford Symposium on “New Torts” focuses on causes of action in which the state seeks to enjoin the defendant by requiring that it abate the consequences of the invasion of a public right. In the most controversial of these public nuisance actions, such as lead paint and opioids, the wrongful conduct that is remedied by the injunctive relief has already ceased, and the state does …

Foreclosure Sales As Fraudulent Transfers, David G. Carlson

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The Supreme Court has declared that noncollusive, regularly conducted foreclosure sales are not “constructive” fraudulent transfers voidable by a bankruptcy trustee Uniform state legislation ratifies this instinct for private creditor enforcements. But collusive or irregular foreclosure sales or sales that are intended to hinder, delay, or defraud creditors are subject to creditor attack, even though unsecured creditors are not proper parties to the foreclosure process. In such cases, unsecured creditors can cloud the title obtained from foreclosure in the cases of collusion, irregularity or fraudulent intent. This article examines precisely when foreclosure sales can be avoided by unsecured creditors of …

Situating The Modern Public Trust Doctrine In Trust Law: The Duty Of Loyalty And The Case For Bifurcated, De Novo Judicial Review, Edward A. Zelinsky

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This article situates the modern public trust doctrine (PTD) in contemporary trust law. Grounding the PTD in trust law leads to two important corollaries. First, the PTD planted in trust law imposes upon government actors and agencies trust law’s fiduciary duty of loyalty. In the context of the PTD, that duty of loyalty runs to the public as the beneficiary of the PTD. Second, faced with plausible claims that this fiduciary duty of loyalty to the public has been violated, courts should apply trust law’s de novo standard of review to those administrative and legislative decisions alleged to impair public …