Law Commons^™

Never Let A Good Crises Go To Waste, Richard Pomp

Faculty Articles and Papers

A problem with temporary tax study commissions is that by the time their findings are released, changes in the political environment may have rendered their suggestions worthless. Permanent standing commissions are needed. The temporary crisis of the current pandemic, an opportunity for tax reform, illustrates this point.

In this article, Professor Pomp argues for the creation of a permanent state body tasked with managing tax reform. It would perform research and analysis, educate legislatures about how current law operates, initiate proposals, and draft legislation. Being permanent, such a body would be proactive enough to respond to a temporary crisis.

In …

My Dinner With Ruth, Richard Pomp

Faculty Articles and Papers

In this whimsical piece, Professor Pomp describes the experience of dining with Ruth Bader Ginsburg when she served on the D.C. Circuit. Invited to dinner by Marty Ginsburg, a tax legend, Pomp’s initial uncertainty of how to engage Judge Ginsburg in small talk quickly vanished due to her Socratic and sincere interest in his work. Pomp, while reflecting on the dinner conversation, recalls feeling that he was in the presence of greatness. This article portrays what was not only Justice Ginsburg’s supreme intellect, but her warm, nurturing humanity as well.

What Can The Oecd Learn From The States?, Richard Pomp

Faculty Articles and Papers

In this article, Professor Pomp argues that the OECD should look to the American states for insight into taxing cross-jurisdictional corporations. In the early 20th century, the states had to respond to the challenge of taxing domestic interstate corporations. While these corporations posed no tax problem at the federal level, states had to respond to the reality of corporations shifting profits into neighboring tax havens. They needed a better alternative to federal transfer pricing and sourcing rules. In the 1930’s, some states began combining domestic related entities.

The growth of multinational corporations created new problems for both the states and …

A Report To The Connecticut Office Of Policy And Management Regarding A Proposed Payroll Tax, Richard Pomp

Faculty Articles and Papers

This Report analyzes a 5% payroll tax that would be imposed on employers in the amount of the Connecticut wages they pay to their employees. An anticipated response to this tax is that employers would shift this tax to their employees by reducing their wages by the cost of the tax. In this case, there would also be a reduction of the existing personal income tax rates by 5 points, but only if there were a reduction in wages. The effect would be to eliminate the 3% and 5% brackets, and would only be applicable to wages; it would not …

Incitement In An Era Of Populism: Updating Brandenburg After Charlottesville, Richard A. Wilson, Jordan Kiper

Faculty Articles and Papers

We live in an era of populism, characterized by political polarization, inciting speech on social media, and an escalation in hate crimes. The regulatory framework for direct incitement to imminent lawless action established fifty years ago in Brandenburg is showing signs of severe strain. One of the central frailties of Brandenburg’s three-part test is the lack of guidance on how courts should evaluate the probability that an inciting speech act will cause an imminent offense. In the absence of clear direction on analyzing risk, judges often rely on outdated heuristics and misleading metaphors. This article is the first to draw …

The Hartford Guidelines On Speech Crimes In International Criminal Law, Richard Ashby Wilson, Matthew Gillett

Faculty Articles and Papers

The Hartford Guidelines on Speech Crimes in International Criminal Law are a comprehensive survey of individual criminal responsibility for harmful speech acts under international criminal law. The Guidelines offer a restatement of current international law concerning speech crimes with a view to assisting international agencies, national authorities and other actors contemplating appropriate regulatory responses to inciting speech and associated human rights violations. As such, they provide legal actors with an urgently needed, authoritative and systematic legal framework for regulating and sanctioning speech that violates international legal standards. Speech crimes are a decidedly unsettled area of international criminal law. There is …

On Social Network Position In Employment Law: Conjectures For Charlie, Sachin Pandya

Faculty Articles and Papers

This paper, part of a Festschrift for Charles A. Sullivan, shows how arguments from two of Sullivan's papers on employment law would fare in a world in which employers can easily see a worker's or job applicant's relative position within a social or professional network. The paper then uses Sullivan's corpus of legal scholarship to illustrate some challenges to using social network evidence in employment law.

Punishing The Innocent, Richard Parker

Faculty Articles and Papers

No abstract provided.

Why More Employers Are Getting Salt-Y On Remote Work Arrangements, Richard Pomp, Jeffrey A. Friedman

Faculty Articles and Papers

This article explores the consequences of the extreme increase in remote work, due to the pandemic, on state taxation. Discussed in the article is state sourcing and apportioning of nonresident wage income, employer withholding tax obligations, and corporate tax nexus.

The authors predict an increase in litigation as a result of states seeking to retain the ability to tax nonresident wages. For example, New York considers employees to be working in-state (and thus subject to taxation) even when they are not physically present in New York so long as they are working remotely for reasons of personal convenience. But, the …

Reputational Economies Of Scale, Miguel F.P. De Figueiredo, Daniel Klerman

Faculty Articles and Papers

For many years, most scholars have assumed that the strength of reputational incentives is positively correlated with the frequency of repeat play. Firms that sell more products or services were thought more likely to be trustworthy than those that sell less because they have more to lose if consumers decide they have behaved badly. That assumption has been called into question by recent work that shows that, under the standard infinitely repeated game model of reputation, reputational economies of scale will occur only under special conditions, such as monopoly, because larger firms not only have more to lose from behaving …

Andrew Wheeler’S Trojan Horse For Clean Air Act Regulation, Richard Parker, Amy Sinden

Faculty Articles and Papers

No abstract provided.

Responding To Covid: How To Deal With Nearly $100 Billion In Wasted Incentives, Richard Pomp

Faculty Articles and Papers

This article urges policymakers to cut down on ineffective and costly tax expenditures. Tax expenditures aim to incentivize beneficial economic outcomes; the tax jurisdiction surrenders the right to a portion of its tax base in anticipation of economic benefits. While tax expenditures are not inherently bad or good, many believe that most tax incentive programs would fail a cost-benefit analysis.

Ideally, tax incentives target economic activity that would not occur in the absence of the incentive. And to be considered a success, the benefit of the activity must outweigh the cost of the incentive. For example, if the goal of …

Things Not Worth Doing Are Especially Not Worth Doing Poorly: The Maryland And Nebraska Taxes Of Digital Advertising, Richard Pomp

Faculty Articles and Papers

In this article, Professor Pomp reviews and critiques the recent attempts by Maryland and Nebraska to tax digital advertising.

Maryland has proposed a gross revenue tax on digital advertising with a progressive rate structure. Though the tax is based on Maryland revenue, the rate is determined by global revenue. While resembling an exemption with progression approach, commonly utilized in income taxes to assess a taxpayer’s ability to pay, gross receipts taxes like this one are not concerned with ability to pay. And the approach discriminates against taxpayers engaged in interstate commerce, since out-of-state business activity leads to a higher rate …

Rethinking The Relationship Between Punishment And Policing, Kiel Brennan-Marquez

Faculty Articles and Papers

Responding to Gabriel Mendlow, Why Is it Wrong To Punish Thought?, 127 YALE L. J. 2342 (2018).

The Politics Of Lawyer Regulation: The Case Of Malpractice Insurance, Leslie C. Levin

Faculty Articles and Papers

This Article examines the politics of lawyer regulation and considers why some states will adopt lawyer regulation that protects the public, when others will not. It uses the debates over how to regulate uninsured lawyers as a lens through which to examine the question. Clients often cannot recover damages from uninsured lawyers who commit malpractice, even when those lawyers cause serious harm. Yet only two states require that lawyers carry malpractice insurance. This Article uses case studies to examine the ways in which six states recently have addressed the issue of uninsured lawyers to understand this regulatory failure. It uses …

The End Of Mandatory State Bars?, Leslie C. Levin

Faculty Articles and Papers

The country’s thirty-one mandatory state bar associations are facing an existential threat following the U.S. Supreme Court’s decision in Janus v. ACSME, 138 S. Ct. 2448 (2018). In Janus, the Court considered the constitutionality of compelling public employees to pay agency fees to a labor union. In the process, the Court effectively upended the reasoning of earlier Supreme Court precedent that enabled mandatory state bars to compel bar dues payments from objecting lawyers and expend dues to fund traditional bar functions. Mandatory state bars—which function both as regulators and as traditional bar associations—are now defending themselves against claims in several …

Report To The Wisconsin Office Of Lawyer Regulation: Analysis Of Grievances Filed In Criminal And Family Matters From 2013-2016, Leslie C. Levin, Susan Saab Fortney

Faculty Articles and Papers

In many states, the highest number of docketed grievances arise out of criminal and family law matters. This report analyzes the 4,898 grievances filed with the Wisconsin Office of Lawyer Regulation (“OLR”) in family or criminal law matters during the period from 2013-2016. The OLR provided the data, enabling analysis of the grievances by gender, age, length of time since law school graduation, type of matter, prior experience with diversion or discipline, and geographical location. The data also revealed the frequency of allegations by practice matter, the types of allegations that led to discipline, and the frequency with which lawyers …