Law Commons^™

The Case For Taxing (All Of) Labor Income, Consumption, Capital Income, And Wealth, David Gamage

Articles by Maurer Faculty

Perhaps the most fundamental questions in tax legal scholarship concern debates about what should be the ideal tax base or tax bases. In particular, scholars have vigorously disagreed about (1) whether the United States should follow other developed countries in supplementing its income tax with a value-added consumption tax, and (2) whether governments should seek to tax capital income and wealth or should instead seek to redesign or replace income taxes with progressive consumption taxes.

The prior economics-oriented theoretical literature on these questions has largely focused on analyzing labor supply and savings behaviors. Yet the existing empirical literature does not …

Foreword--King V. Burwell Symposium: Comments On The Commentaries (And On Some Elephants In The Room), David Gamage

Articles by Maurer Faculty

This invited essay reviews the pieces submitted for the Pepperdine Law Review symposium on the King v. Burwell case. The thrust of this essay's response commentary is to praise the submitted essays for their excellence and insightfulness, but to suggest that the submitted essays nonetheless might benefit from focusing more on the role of the political mobilization that resulted in the King v. Burwell dispute. Ultimately, this essay suggests that what may have motivated the Supreme Court to develop and apply its new "deep economic and political significance" test in this this case may not have been anything inherent to …

Prompt On The King V. Burwell Case, David Gamage

Articles by Maurer Faculty

Once again, the U.S. Supreme Court will be deciding the fate of Obamacare — in the case of King v. Burwell. Also, once again, the future of American healthcare reform will turn on how the Supreme Court reviews a provision of Obamacare that was enacted through the tax code.

So far, the debates over King v. Burwell have largely focused on Constitutional law, Administrative law, and other non-tax-law considerations. Might there be unique tax law perspectives that could be brought in to better illuminate these debates? Does it matter that the provision being reviewed (I.R.C. Sec. 36B) was enacted through …

Using Taxes To Improve Cap And Trade, Part I: Distribution, David Gamage, Darien Shanske

Articles by Maurer Faculty

In this article, the first of a series, we analyze the distributional issues involved in implementing U.S. state level cap-and-trade regimes. Specifically, we will argue that the structure of California’s AB 32 regime will unnecessarily disadvantage lower-income Californians under the announced plan to give away approximately half of the permits to businesses and pollution-emitting entities.

The State Of Recusal Reform, Charles G. Geyh, Myles Lynk, Robert S. Peck, Toni Clarke

Articles by Maurer Faculty

No abstract provided.

Are These Game Changers? Developments In The Law Affecting Virtual Currencies, Prepaid Payroll Cards, Online Tribal Lending, And Payday Lenders, Sarah Jane Hughes, Stephen T. Middlebrook

Articles by Maurer Faculty

In the year since our last survey, there have been significant legal developments in the areas of virtual currencies, prepaid payroll cards, online tribal lending, and payday lending. What connects some of these topics is an increasingly common strategy by federal banking regulators to influence and control the actions of entities that are not directly subject to their supervision through the relationships such entities have with regulated financial institutions. These developments also demonstrate robust state legislative and regulatory action relating to the provision of electronic payments and financial services, and document class actions alleging violations of federal and state laws. …

Hacking The Wealth Of Nations: Managing Markets Amid Malware, David P. Fidler

Articles by Maurer Faculty

No abstract provided.

The Implications Of Csx And Dma, David Gamage, Darien Shanske

Articles by Maurer Faculty

This essay analyzes the implications of two recent Supreme Court cases on state and local taxation: Alabama Department of Revenue v. CSX Transportation Inc. and Direct Marketing Association v. Brohl. We argue that both of these decisions not only fail to resolve major issues in state and local taxation, but actually unsettle these issues.

Policing Sex: The Colonial, Apartheid, And New Democracy Policing Of Sex Work In South Africa, India Thusi

Articles by Maurer Faculty

In Part I of this Article, I discuss the perception that sex work was a “necessary evil” under the Dutch East India Company. In Part II, I discuss British colonial rule and the influence of the Victorian era on the policing of sex work. In Part III, I discuss the Union of South Africa and the mass hysteria following the rise of the “black peril.” Part IV discusses the apartheid era and the impact of the Immorality Act on the policing of sex workers. Part V focuses on the new democratic era and the introduction of the human rights framework. …

Emergence From Civil Death: The Evolution Of Expungement In West Virginia, Valena Beety, Michael Aloi, Evan Johns

Articles by Maurer Faculty

Ninety-two million Americans have a criminal record—nearly one in three adults. This criminal record can include an arrest that did not lead to a conviction, a conviction for which the person did not serve time in prison, or a conviction for a nonviolent crime. All can have a similar impact on an individual’s job prospects and on local economies. Incarcerating adult Americans costs a combined $68 billion annually at the local, state, and federal levels. The cost of lost wages and lost financial contributions to society by ex-offenders is even higher.

This financially immobilized population of former offenders may be …

Prison Privatization And Inmate Labor In The Global Economy: Reframing The Debate Over Private Prisons, Alfred C. Aman, Carol J. Greenhouse

Articles by Maurer Faculty

The pragmatics of privatization offer terrain for a critical understanding of the relationship between government and business under the conditions associated with the globalization of neoliberal capitalism. Prison privatization is especially significant in this context, given the fact that—for privatization advocates and critics alike, in the United States and elsewhere—prisons represent a bellwether for broader questions about the scope of government. We review the recent history of prison privatization in the United States from the vantage point of the policy responses to the privatization movement more generally, to highlight the various factors that, over time, made private prisons iconic of …

Griggs At Midlife, Deborah A. Widiss

Articles by Maurer Faculty

Griggs v. Duke Power, the Supreme Court case that held that policies that disproportionately harm minority employees can violate federal employment discrimination law even without evidence of “intentional” discrimination, recently turned forty. Griggs is generally celebrated as a landmark decision, but disparate impact’s current relevance (and its constitutionality) is hotly debated. Robert Belton’s The Crusade for Equality in the Workplace offers a rich and detailed history of the strategic choices that led to the plaintiffs’ victory in Griggs. This Review uses Belton’s history as a jumping off point to consider the contemporary importance of disparate impact in efforts to challenge …

Improving Economic Sanctions In The States, Jessica M. Eaglin

Articles by Maurer Faculty

No abstract provided.

Reducing Racial And Ethnic Disparities In Jails: Recommendations For Local Practice, Jessica M. Eaglin, Danyelle Solomon

Articles by Maurer Faculty

People of color are overrepresented in our criminal justice system. One in three African American men born today will be incarcerated in his lifetime. In some cities, African Americans are ten times more likely to be arrested when stopped by police. With the national debate national focused on race, crime, and punishment, criminal justice experts are examining how to reduce racial disparities in our prisons and jails, which often serve as initial entry points for those who become entangled in the criminal justice system.

This report, which relies on input from 25 criminal justice leaders, pinpoints the drivers of racial …

The Viability Of Enterprise Jurisdiction: A Case Study Of The Big Four Accounting Firms, Hannah L. Buxbaum

Articles by Maurer Faculty

One of the boundaries that U.S. courts must observe as they adjudicate regulatory disputes is the limit on their own jurisdictional authority -authority that is measured at the level of the particular forum state. Confronting the expansion of U.S. business activity from the local to the national scale during the second half of the twentieth century, courts consciously broadened jurisdictional standards to address the expanded activities of nationwide corporate groups. Today, by contrast, as the economy continues to expand from the national to the transnational scale, the U.S. Supreme Court has begun a retrenchment. In cases decided during the past …

The Seductive Power Of Patriarchal Stories, Aviva A. Orenstein

Articles by Maurer Faculty

This essay develops a theme introduced in Rape and Culture of the Courtroom written by Andrew Taslitz. It examines the cases in which judges allow evidence of the victim’s sexual history and proclivities because, in their estimation, excluding such evidence would violate the constitution (an exception to rape shield in Fed. R. Evid 412). The review of these cases demonstrates the persistent power of patriarchal stories and documents how the constitutional exception sometimes indicates a resistance to the entire enterprise of rape shield. In particular, it focus on Gagne v. Booker, an en banc decision from the Sixth Circuit, …

Still Kickin’ After All These Years: Sutton And Toyota As Shadow Precedents, Deborah A. Widiss

Articles by Maurer Faculty

Congress’s ability to override judicial opinions that interpret statutes is generally understood as an important aspect of maintaining legislative supremacy. In a series of articles, I have challenged the validity of this assumption by showing that courts often continue to rely on overridden precedents—what I have called shadow precedents. My earlier work explores instances in which it was unclear or debatable whether the override or the prior precedent should control. This article further documents such ambiguities, but its primary objective is to highlight examples of ongoing reliance on shadow precedents where it is unquestionably improper. It suggests, however, that citation …

Making Sausage: What, Why And How To Teach About Legislative Process In A Legislation Or Leg-Reg Course, Deborah A. Widiss

Articles by Maurer Faculty

Although a rapidly growing number of law schools require students to take a course on legislation, many of these courses teach very little about how laws are actually enacted. This essay, written for a special issue of the Journal of Legal Education, argues that study of the legislative process helps students interpret and apply statutory language.

The essay surveys existing text books and supplemental resources that could be easily integrated into a Leg-Reg or Legislation class to explain modern Congressional procedure. The focus is the multiple distinct paths that bills may take through a legislative body and the written …

Forfeiture Of Confrontation Rights And The Complicated Dynamics Of Domestic Violence: Some Thoughts Inspired By Myrna Raeder, Aviva A. Orenstein

Articles by Maurer Faculty

In this essay and memorial to my friend and colleague, Myrna Raeder, I examine forfeiting the right of confrontation in the context of domestic violence cases. In 2004, Crawford v. Washington the United States Supreme Court reinterpreted the Sixth Amendment, requiring that for “testimonial statements” to be offered against the accused, the speaker must appear in court, or, if unavailable, must have been subject to cross-examination previously. The practical effect of Crawford was to exclude many out-of-court statements that had previously been admissible. Nowhere was the effect of Crawford more striking than in domestic violence cases, where victims often make …

King V. Burwell: What Does It Portend For Chevron's Domain?, Leandra Lederman, Joseph C. Dugan

Articles by Maurer Faculty

In King v. Burwell, the U.S. Supreme Court affirmed the Fourth Circuit’s decision, upholding regulations that extend the Premium Tax Credit (the Credit) to qualifying taxpayers who purchase health insurance on the Internet-based “Marketplace” operated by the federal Department of Health and Human Services (HHS), despite statutory language extending the subsidy to individuals who purchase through “an Exchange established by the State.” This was the second time in just three years that the Roberts Court engaged in what one critic called “linguistic acrobatics” that rescued President Obama’s signature healthcare law, the Affordable Care Act (ACA)—or, as Justice Scalia …

The Role Of Agency: Compensated Surrogacy And The Institutionalization Of Assisted Reproduction Practices, Jody L. Madeira, June Cabone

Articles by Maurer Faculty

The surrogacy debate often conflates what should be seen as three distinct issues: the permissibility of the practice under any circumstances, the role of for-profit intermediaries in arranging surrogacy, and the role of compensation in influencing decision-making.

For those who see surrogacy as intrinsically objectionable, nothing short of a total ban will suffice. For those who object to the commodification of reproduction or to the role of for-profit agencies in recruiting surrogates, however, the solutions lie in regulation rather than prohibition. Commercial agencies, unlike infertile couples who enter into arrangements with their friends and relatives, are repeat players. They are …

The Art Of Informed Consent: Assessing Patient Perceptions, Behaviors, And Lived Experience Of Ivf And Embryo Disposition Informed Consent Processes, Jody L. Madeira

Articles by Maurer Faculty

No abstract provided.

What The Jobs Are: New Tech, New Client Needs Create A New Field Of Legal Operations, William D. Henderson

Articles by Maurer Faculty

No abstract provided.

Taking The Measure Of Nations: Testing The Global Norm Of Territorial Integrity, Timothy W. Waters

Articles by Maurer Faculty

No abstract provided.

Countering Islamic State Exploitation Of The Internet, David P. Fidler

Articles by Maurer Faculty

No abstract provided.

The Data Protection Credibility Crisis, Fred H. Cate, Christopher Kuner, Christopher Millard, Dan Jerker B. Svantesson, Orla Lynskey

Articles by Maurer Faculty

No abstract provided.

Risk Management In Data Protection, Fred H. Cate, Christopher Kuner, Christopher Millard, Dan Jerker B. Svantesson, Orla Lynskey

Articles by Maurer Faculty

No abstract provided.

When The Bough Breaks: The U.S. Tax Court's Branch Difficulties, Leandra Lederman

Articles by Maurer Faculty

This essay highlights the confusion over which of the three branches of government (if any) is home to the U.S. Tax Court, which hears over 95% of litigated federal tax cases. This uncertainty recently resulted in a separation of powers challenge to the Tax Court. There is a pressing need for the Tax Court’s status to be resolved, to decrease its insularity and increase transparency and accountability.

Technology And The Law On The Use Of Force: New Security Challenges In The Twenty-First Century, By Jackson Maogoto, Asaf Lubin

Articles by Maurer Faculty

Review of:

Technology and the Law on the Use of Force: New Security Challenges in the Twenty-First Century. By Jackson Maogoto. Oxford, UK: Routledge, 2015. Pp xviii, 111. Price: $117.71 (Hardcover).

Can't We Be Your Neighbor? Trayvon Martin, George Zimmerman, And The Resistance To Blacks As Neighbors, Jeannine Bell

Articles by Maurer Faculty

The Civil Rights Act of 1964 paved the way for the Fair Housing Act of 1968, which was designed to address discrimination in one of our most intimate space — neighborhoods. Fifty-six years after the passage of the Fair Housing Act, Americans remain fiercely resistant to the concept of neighborhood integration. This Article uses an unlikely event, the killing of Trayvon Martin, to discuss one manifestation of that resistance with disturbing implications.