Law Commons^™

The Other Eighty Percent: Private Investment Funds, International Tax Avoidance, And Tax-Exempt Investors, Omri Marian

BYU Law Review

The taxation of private equity managers’ share of funds’ profits—the twenty percent “carried interest”—received much attention in academic literature and popular discourse. Much has been said and written about the fact that fund managers’ profits are taxed at preferred rates. But what about the other eighty percent of funds’ profits? This Article theorizes that the bulk of such profits are never taxed. This is a result of a combination of three factors: First, private equity, venture capital, and hedge funds (collectively, Private Investment Funds, or “PIFs”) are major actors in cross-border investment activity. This enables PIFs to take advantage of …

Defending Worldwide Taxation With A Shareholder-Based Definition Of Corporate Residence, J. Clifton Fleming Jr., Robert J. Peroni, Stephen E. Shay

BYU Law Review

This Article argues that a principled, efficient, and practical definition of corporate residence is necessary even if some form of corporate integration is adopted, and that such a definition is a key element in designing either a real worldwide or a territorial income tax system as well as a potential restraint on the inversion phenomenon. The Article proposes that the United States adopt a shareholder-based definition of corporate residence that is structured as follows: 1. A foreign corporation is a U.S. tax resident for any year if fifty percent or more of its shares, determined by vote or value, was …

Developing Countries In An Age Of Transparency And Disclosure, Diane Ring

BYU Law Review

No abstract provided.

The Foreign Tax Credit War, Bret Wells

BYU Law Review

The government has been involved in a sustained war against objectionable foreign tax credit transactions. This war has caused the U.S. foreign tax credit regime to be riddled with complexity that spawns incoherent outcomes. The complexity contained in section 901 was created due to a legitimate concern: the threats posed by objectionable transactions that artificially generate excess foreign tax credits represent real policy problems. Since at least 1975, Congress and the Treasury Department have been convinced that the cross-crediting of excess foreign tax credits arising from “objectionable transactions” required a response in addition to simply relying on section 904. Thus, …

Beps And The New International Tax Order, Allison Christians

BYU Law Review

Nations across the world are currently engaged in a coordinated international effort, ostensibly to curb excessive tax avoidance by the world’s biggest multinational companies. This Article contends, however, that the most likely impact will be to entrench a monopoly held by a small number of rich countries over the policymaking processes that created the tax avoidance problem to begin with. To examine this contention and probe possible solutions to it, the Article considers the legal and institutional components of the coordination project, by situating them historically and analyzing their multi-functionality as both norm diffusion and institutional reinforcement mechanisms. The Article …

Competitiveness, Tax Base Erosion, And The Essential Dilemma Of Corporate Tax Reform, Kimberly A. Clausing

BYU Law Review

Label contradicts reality for the U.S. international corporate tax system. The U.S. system is typically labeled as a worldwide tax system with a statutory rate of 35%, both uncommon features among our trading partners. Yet these markers of the U.S. tax system do not accurately describe reality, where multinational firms routinely face far lower effective tax rates and little, if any, tax is collected on foreign income. Understanding this discrepancy between label and reality is essential to evaluate recent policy debates surrounding corporate inversions and the competitiveness of the U.S. international tax system. Although there is an essential policy tradeoff …

Inversions, Related Party Expenditures, And Source Taxation: Changing The Paradigm For The Taxation Of Foreign And Foreign-Owned Businesses, Julie A. Roin

BYU Law Review

The disconnect between the rules for the taxation of domestic businesses and foreign and foreign-owned businesses operating in the United States both diminishes the federal treasury and distorts taxpayer and business behavior. Yet bringing the sets of rules into closer coordination is no simple task. This Article examines many of the solutions proffered in the academic literature and details the difficulties and trade-offs that each entails.

Misaligned Interests In Private Equity, Jarrod Shobe

BYU Law Review

This Article examines the unique set of agency costs that arise from the separation of ownership and control in private equity funds. These funds operate without significant regulatory or legislative oversight. Instead, they are governed primarily by contractual arrangements between investors and managers that are poorly understood by legal scholars. This Article looks into the black box of these internal arrangements to provide a broad analysis of whether and how these contracts align or misalign the interests of investors and managers. It turns out that the compensation of managers, which is commonly thought to serve as the most powerful tool …

Why Judicial Deference To Administrative Fact-Finding Is Unconstitutional, John Gibbons

BYU Law Review

No abstract provided.

Unsettled: How Climate Change Challenges A Foundation Of Our Legal System, And Adapting The Legal State, Victor B. Flatt

BYU Law Review

One of the fundamental goals of law is to end disputes. This push to “settlement” is foundational and has historically worked to increase societal efficiency and justice by engendering legitimate expectations among the citizenry. However, the efficient nature of much legal finality, settlement and repose only exists against a background of evolution of the physical environment that is predictable and slowpaced. That background no longer exists. The alteration of the physical world, and thus, the background for our societal structure and decisions, is accelerating rapidly due to human-caused climate change. This creates a mismatch between the law’s tendency to finality …

Getting Brady Right: Why Extending Brady V. Maryland’S Trial Right To Plea Negotiations Better Protects A Defendant’S Constitutional Rights In The Modern Legal Era, James M. Grossman

BYU Law Review

No abstract provided.

Freedom Of Corporate Purpose, George A. Mocsary

BYU Law Review

No abstract provided.

Transparent Review Of Agency Immigration Decisions, Kyler Mccarty

BYU Law Review

No abstract provided.

The Accreditation Of Religious Law Schools In Canada And The United States, John Boersma

BYU Law Review

Ongoing litigation in Canada suggests that the legal status of religiously affiliated law schools could be in jeopardy. In Canada, regulatory authorities have sought to deny accreditation status to a religiously affiliated law school (Trinity Western University) due to its commitment to a traditional Christian understanding of marriage. According to Canadian provincial authorities, this commitment has a discriminatory effect on LGBT students. Similar events could potentially occur in the United States. It is possible that American regulatory bodies could seek either to rescind or withhold accreditation from a religiously affiliated law school because of the discriminatory effects of its policies. …

Standing Room Only: Solving The Injury-In-Fact Problem For Data Breach Plaintiffs, Nick Beatty

BYU Law Review

No abstract provided.

The Legal Revolution Against The Place Of Religion: The Case Of Trinity Western University Law School, Barry W. Bussey

BYU Law Review

The special legal status of religion and religious freedom in liberal democracies has become an issue of controversy among legal academics and lawyers. There is a growing argument that religion is not special and that the law should be amended to reflect that fact. This Article argues that religion is special. It is special because of the historical, practical, and philosophical realities of liberal democracies. Religious freedom is a foundational principle that was instrumental in creating the modern liberal democratic state. To remove religion from its current legal station would be a revolution that would put liberal democracy in a …

Human Rights, Religious Freedom, And Peace, David Little

BYU Law Review

No abstract provided.

When The State Requires Doctors To Act Against Their Conscience: The Religious Freedom Implications Of The Referral And The Direction Obligations Of Health Practitioners In Victoria And New South Wales, Michael Quinlan

BYU Law Review

No abstract provided.

From Library To Liability—Importing Trade Secret Doctrines To Erase Unfair Copyright Risks Lurking In Youtube’S Creative Commons Library, Adam Balinski

BYU Law Review

No abstract provided.

Quasi-Constitutional Protections And Government Surveillance, Emily Berman

BYU Law Review

The post-Edward Snowden debate over government surveillance has been vigorous. One aspect of that debate has been widespread criticism of the Foreign Intelligence Surveillance Court (FISC), alleging that the FISC served as a rubber stamp for the government, consistently accepting implausible interpretations of existing law that served to expand government surveillance authority; engaging in tortured analyses of statutory language; and ignoring fundamental Fourth Amendment principles. This Article argues that these critiques have entirely overlooked critical aspects of the FISC’s jurisprudence. A close look at that jurisprudence reveals a court that did, in fact, vigorously defend the interests customarily protected by …

Adversary Breakdown And Judicial Role Confusion In “Small Case” Civil Justice, Jessica K. Steinberg

BYU Law Review

This Article calls attention to the breakdown of adversary procedure in a largely unexplored area of the civil justice system: the ordinary, twoparty case. The twenty-first century judge confronts an entirely new state of affairs in presiding over the average civil matter. In place of the adversarial party contest, engineered and staged by attorneys, judges now face the rise of an unrepresented majority unable to propel claims, facts, and evidence into the courtroom. The adversary ideal favors a passive judge, but the unrealistic demands of such a paradigm in today’s “small case” civil justice system have sparked role confusion among …

Daily Fantasy Sports As Game Of Chance: Distinction Without A Meaningful Difference?, N. Cameron Leishman

BYU Law Review

No abstract provided.

Incentivizing Armed Non-State Actors To Comply With The Law: Protecting Children In Times Of Armed Conflict, Sarah Hafen

BYU Law Review

No abstract provided.

Disentangling Flight Risk From Dangerousness, Lauryn P. Gouldin

BYU Law Review

There is a growing national consensus about the urgent need to shrink the population of pretrial detainees and to fix our broken money bail system. Even as scholars and reformers are showing renewed interest in pretrial detention and bail, however, they have neglected a fundamental pretrial problem: the conflation (by judges and in statutes) of flight risk and danger. Reformers have offered up an array of proposals and increasingly sophisticated risk assessment tools that promise to improve judicial decision-making, but many of these tools merge flight risk and danger in ways that reinforce problematic legislative and judicial practices.

This Article …

Preventing Preemption: Finding Space For States To Regulate Consumers’ Credit Reports, Elizabeth D. De Armond

BYU Law Review

No abstract provided.

Regulating Identity: Medical Regulation As Social Control, Matt Lamkin

BYU Law Review

New biomedical technologies offer growing opportunities not only to prevent and treat illnesses, but also to change how healthy people think, feel, behave, and appear to others. Controversies over these nontherapeutic practices are a pervasive feature of contemporary American culture, from students on “study drugs” and cops on steroids to skin-lightening by black celebrities and the over-prescription of antidepressants. Yet the diversity of these controversies often masks their common root—namely, disputes about the propriety of using medical technologies as tools for shaping one’s identity.

Some observers believe these so-called “enhancement” practices threaten important values, offering unfair advantages to users and …

Guilt-Free Markets? Unconscionability, Conscience, And Emotions, Hila Keren

BYU Law Review

Despite record-level economic inequalities and a vast growth in market exploitation, courts remain surprisingly reluctant to exercise their power to invalidate the resulting predatory contracts. There is no doubt that courts are authorized to invalidate predatory contracts based on their unconscionability. There is, however, an ongoing debate regarding the desirability of utilizing this judicial power in a capitalist society. This Article enters the discussion from a unique angle: it focuses less on the bottom line of jurisprudence and more on the law’s expressive power—the fact that the law’s impact extends beyond its ability to sanction or reward behaviors. Specifically, the …

On Doctrinal Confusion: The Case Of The State Action Doctrine, Christopher W. Schmidt

BYU Law Review

In this Article, I use a case study of the Fourteenth Amendment’s state action doctrine as a vehicle to consider, and partially defend, the phenomenon of persistent doctrinal confusion in constitutional law. Certain areas of constitutional law are messy. Precedents seem to contradict one another; the relevant tests are difficult to apply to new facts and new issues; the principles that underlie the doctrine are difficult to discern. They may become a “conceptual disaster area,” as Charles Black once described the state action doctrine. By examining the evolution of the state action doctrine, this notoriously murky field of constitutional law, …

Trusts No More: Rethinking The Regulation Of Retirement Savings In The United States, Natalya Shnitser

BYU Law Review

The regulation of private and public pension plans in the United States begins with the premise that employer-sponsored plans resemble traditional donative, or gift, trusts. Accordingly, the Employee Retirement Income Security Act of 1974 (ERISA) famously “imports” major principles of donative trust law for the regulation of private employer-sponsored pension plans. Statutes regulating state and local government pension plans likewise routinely invoke the structure and standards applicable to donative trusts. Judges, in turn, adjudicate by analogy to the common law trust.

This Article identifies the flaws in the analogy and analyzes the shortcomings of a regulatory framework that, despite dramatic …

Saving The Internet: Why Regulating Broadband Providers Can Keep The Internet Open, Emma N. Cano

BYU Law Review

No abstract provided.