Law Commons^™

The Living Anti-Injunction Act, Daniel J. Hemel

Public Law and Legal Theory Working Papers

In the coming months, the Internal Revenue Service is likely to issue a slew of new regulations interpreting the December 2017 federal tax reform legislation. These regulations are likely to define the scope of the new deduction for pass-through entities; determine the reach of the new base erosion tax on multinational enterprises; fill in the details of the new “opportunity zone” program aimed at encouraging investment in low-income communities; and address a wide range of other important matters.¹ Inevitably, some taxpayers will object to these regulations and will seek to challenge the new rules in court. When, where, and …

Innovation Policy Pluralism, Daniel J. Hemel, Lisa Larrimore Ouellette

Public Law and Legal Theory Working Papers

When lawyers and scholars speak of “intellectual property,” they are generally referring to a combination of two distinct elements: an innovation incentive that promises a marketbased reward to producers of knowledge goods, and an allocation mechanism that makes access to knowledge goods conditional upon payment of a proprietary price. Distinguishing these two elements clarifies ongoing debates about intellectual property and opens up new possibilities for innovation policy. Once intellectual property is disaggregated into its core components, each element can be combined synergistically with non-IP innovation incentives such as prizes, tax preferences, and direct spending on grants and government research, or …

Antitrust Remedies For Labor Market Power, Suresh Naidu, Eric A. Posner, Glen Weyl

Public Law and Legal Theory Working Papers

Recent research indicates that labor market power has contributed to wage inequality and economic stagnation. Although the antitrust laws prohibit firms from restricting competition in labor markets like in product markets, the government does little to address the labor market problem and private litigation has been rare and mostly unsuccessful. The reason is that the analytic methods for evaluating labor market power in antitrust contexts are primitive, far less sophisticated than the legal rules used to judge product market power. To remedy this asymmetry, we propose methods for judging the effects of mergers on labor markets. We also extend our …

The Tax Legislative Process: A Byrd's Eye View, Ellen P. Aprill, Daniel J. Hemel

Public Law and Legal Theory Working Papers

The year 2017 was, among other distinctions, the year of the Byrd rule. This once-obscure Senate procedural provision—on the books since 1985 but only recently the stuff of page one news¹ — featured prominently in several failed attempts to repeal the Affordable Care Act in the spring and summer. Then again at year’s end, the Byrd rule played a central role in the successful effort to rewrite large swaths of the Internal Revenue Code. While the Byrd rule has influenced the legislative process in the past, never before has it drawn so much attention from the mainstream and trade …

States And Localities Can Offset Federal Tax Law's Impact On Their Residents, Daniel J. Hemel

Public Law and Legal Theory Working Papers

No abstract provided.

The Measure Of A Metric: The Debate Over Quantifying Partisan Gerrymandering, Nicholas Stephanopoulos, Eric Mcghee

Public Law and Legal Theory Working Papers

Over the last few years, there has been an unprecedented outpouring of scholarship on partisan gerrymandering. Much of this work has sought either to introduce new measures of gerrymandering or to analyze a metric—the efficiency gap— that we previously developed. In this Essay, we reframe the debate by presenting a series of criteria that can be used to evaluate gerrymandering metrics: (1) consistency with the efficiency principle; (2) distinctness from other electoral values; (3) breadth of scope; and (4) correspondence with U.S. electoral history. We then apply these criteria to both the efficiency gap and other measures. The efficiency gap …

Criminal Justice, Inc., John Rappaport

Public Law and Legal Theory Working Papers

In the past decade, major retailers nationwide have begun to employ a private, for-profit system to settle criminal disputes, extracting payment from shoplifting suspects in exchange for a promise not to call the police. This Article examines what retailers’ decisions reveal about our public system of criminal justice and the concerns of the agents who run it, the victims who rely on it, and the suspects whose lives it alters. The private policing of commercial spaces is well known, as is private incarceration of convicted offenders. This Article is the first, however, to document how industry has penetrated new parts …

Congress In The Administrative State, Brian D. Feinstein

Public Law and Legal Theory Working Papers

In an era of increased concern over presidential power, congressional oversight of the executive branch constitutes a substantial—but underappreciated—means of influencing agency decision-making. Scholars too often have overlooked it, and Congress is sub-optimally designed for its provision, but oversight has a significant impact on agency behavior

This Article provides a corrective. It presents the legal mechanisms that give oversight hearings their force and situates these hearings in their historical and legal context. In light of this framework and historical practice, the Article posits that ex post oversight hearings facilitate political control over the administrative state. Because oversight gets its bite …