Law Commons^™

What Is The Best Candidate For A Post-Moore Constitutional Challenge?, Reuven S. Avi-Yonah

Articles

On December 5, 2023, the Supreme Court heard oral arguments in Moore, the case challenging the constitutionality of the mandatory repatriation tax enacted in 2017 (section 965). Most of the justices' questions focused on the potential collateral consequences from requiring realization as a constitutional matter, and the majority seemed inclined to avoid the constitutional issue by focusing on the fact that the income in Moore was realized and that section 965 simply followed a long list of precedents by attributing this corporate income to shareholders in a closely held corporation.

Locating Liability For Medical Ai, W. Nicholson Price Ii, I. Glenn Cohen

Articles

When medical AI systems fail, who should be responsible, and how? We argue that various features of medical AI complicate the application of existing tort doctrines and render them ineffective at creating incentives for the safe and effective use of medical AI. In addition to complexity and opacity, the problem of contextual bias, where medical AI systems vary substantially in performance from place to place, hampers traditional doctrines. We suggest instead the application of enterprise liability to hospitals—making them broadly liable for negligent injuries occurring within the hospital system—with an important caveat: hospitals must have access to the information needed …

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

Articles

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

Articles

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

Articles

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 …

Two Takes On Administrative Change From The Roberts Court, Daniel Deacon, Leah Litman

Articles

In Loper Bright Enterprises v. Raimondo, the Supreme Court finally did what many long hoped (or feared) it would do: overrule Chevron v. Natural Resources Defense Council. Chevron instructed courts to defer to an agency’s interpretation of an ambiguous statutory provision, provided the interpretation was reasonable. Chevron, according to Justice Kagan, had “served as a cornerstone of administrative law” and “the warp and woof of modern government, supporting regulatory efforts of all kinds—to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.” Not surprisingly, statutes governing such matters contain quite a number of …

Building The Gateway: Why The Two Pillars Need Each Other., Reuven S. Avi-Yonah, Ajitesh Kir

Articles

There is a reason the OECD proposed two pillars for its gateway to a better tax future. A gateway requires both pillars, and neither can stand without the other. Pillar 2 is a fait accompli, but it needs countries to implement Pillar 1 as well because in the absence of a clear sourcing rule there is no limit to countries implementing the Qualified Domestic Minimum Top-Up Tax (QDMTT), which would turn off the other parts of Pillar 2 and potentially result in double taxation. Pillar 1 is not going forward in the absence of a Multilateral Tax Convention (MLC), but …

Applying Strict Scrutiny In Termination Of Parental Rights Proceedings: Why Alabama’S Jurisprudence Should Reshape Child Protection Practice, Christopher Church, Vivek Sankaran

Articles

“Our decision in [Pierce] holds that parents have a fundamental constitutional right to rear their children . . . . I would apply strict scrutiny to infringements of fundamental rights.” “[S]trict scrutiny leaves few survivors.” Termination of parental rights (TPR) stands as “a unique kind of deprivation” that results in the state irrevocably severing a parent’s fundamental right to care for their child. In The Ties that Bind Us, we scrutinized the child protection system’s overuse of TPR, employing clinical, empirical, and constitutional perspectives. This Article advocates for a constitutionally anchored framework aimed at enforcing strict scrutiny when considering TPR …

Meme Corporate Governance, Dhruv Aggarwal, Albert H. Choi, Yoon-Ho Alex Lee

Articles

Can retail investors revolutionize corporate governance and make public companies more responsive to social concerns? Beginning in 2021, there was a dramatic influx of retail investors into the shareholder base of “meme” stock companies such as GameStop, AMC, and Bed Bath & Beyond. Observing the unprecedented, coordinated trading among retail investors, scholars and practitioners predicted that the influx of retail investors would reduce the power of large institutional investors and democratize corporate governance. These predictions were driven by three factors: generational, with assumptions that millennial and Gen Z investors would challenge corporate management; societal, reflecting growing discontent with slow progress …

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

Articles

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 …

Is Treasury Bound By The Arm's-Length Standard?, Reuven S. Avi-Yonah

Articles

In December 2023 Abbott Laboratories petitioned the Tax Court to reverse $417 million in section 482 deficiencies. The petition addresses many issues, but as Tax Notes contributing editor Ryan Finley pointed out in his excellent recent article, the most important one relates to the issue of whether stock-based compensation should be included in the pool of costs covered by a costsharing arrangement. This is the same issue that taxpayers have litigated repeatedly, with the most recent case, Altera, resulting in an IRS victory in the Ninth Circuit. If Abbott wins, the case is appealable to the Seventh Circuit, potentially setting …

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

Articles

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.

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

Articles

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 …

Whither Lob?, Reuven S. Avi-Yonah

Articles

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?

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

Articles

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 Law At War With Itself: Character Evidence And The Doctrine Of Chances, Len Niehoff, Shannon Hickey

Articles

Certain legal principles have raging within them a kind of civil war. Important but abstract policy concerns pull the doctrine in one direction; common sense and practical experience pull it in another. Casualties ensue.

Perhaps no body of legal doctrine better exemplifies this sort of internal conflict than the general ban on character evidence, as embodied in Federal Rule of Evidence 404(a)(1). That rule states: “Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with that character or trait.” The rule has deep roots in the …

Generative Artificial Intelligence: Basic Terminology And Concepts, Kincaid Brown

Law Librarian Scholarship

Generative artificial intelligence (GenAI) has been a hard topic to avoid in the media for more than a year. But what do all of the terms mean and what are areas of concern with GenAI tools?

This column aims to provide a baseline explanation of terminology and concepts that are frequently in the media.

A Proposal To Replace The Hearsay Rules, Richard D. Friedman

University of Michigan Journal of Law Reform

This essay proposes a set of rules to replace entirely the 800 series of the Federal Rules of Evidence, the hearsay rules, with a very different, and relatively compact, set of procedural rules. (The current hearsay rules run over 3000 words; the proposed rules run under 1000.) The change will improve truth-determination, make trials more efficient, and better protect the rights of criminal defendants and other parties. There would, of course, be some adjustment period for lawyers and judges as they get accustomed to a different system, but I am confident that it would soon be easier to administer than …

Crawford At 20: An Introduction To The Symposium, Richard D. Friedman

University of Michigan Journal of Law Reform

The twentieth anniversary of Crawford v. Washington provides an ideal opportunity to reflect on the right of a criminal defendant to be confronted with the witnesses against him – on its origins and recent developments, current issues that it presents, paths that it may take, and other changes that it may generate. I am grateful to the Journal of Law Reform for organizing this symposium and to all the participants for having made it a success. In Section 1 of this introductory essay, I offer some comments on the origins, scope, and purpose of the confrontation right. Section 2 discusses …

"Yes, You're About To Meet Your Maker, But Did You Really See That Guy?": The Common Law And The Crawford Dying Declaration Exception, David A. Moran

University of Michigan Journal of Law Reform

I had the privilege of getting to see the creation of the Crawford v. Washington revolution up close. Less than two months after I argued my first case before the Court, it granted Jeffrey Fisher’s petition for writ of certiorari in Crawford. Richard Friedman, who had taught me Evidence when I was a student at Michigan a decade earlier and who is rightfully credited as the intellectual architect of the Crawford revolution, asked me in the fall of 2003 to help moot Jeff, who was also a Michigan alumnus. I went to Washington to hang out with Jeff and Rich …

Creditor Courts, Alexander Billy, Neel U. Sukhatme

Georgetown Law Faculty Publications and Other Works

One of the largest institutional creditors in the United States is perhaps the most unexpected: the criminal court system. Each year, creditor courts collect more than $15 billion in revenues from criminal defendants. These fees are the lifeblood of the modern criminal legal system.

In this Article, we shed new light on the legal and economic framework under which myriad stakeholders operate in these creditor courts. By analyzing new survey data from clerks of court and 102 contracts with debt collection agencies in Florida, we provide general insights how creditor courts distort incentives and teem with conflicts of interest. These …

Teaching Stare Decisis To First-Year Law Students In Higher Education: A Pedagogical Blind Alley?, Kenneth Yin, Carmela De Maio

Research outputs 2022 to 2026

The doctrine of stare decisis is often explained in first-year law studies as synonymous with the doctrine of precedent and dichotomised into ratio decidendi and obiter dicta. This explanation of stare decisis is frequently supplemented by an exercise where the novice law student is provided with a case and directed to identify the ratio decidendi of the case, and to appreciate the distinction between ratio and obiter dicta in it, the latter being persuasive only. It is argued that this pedagogy is limited and unrealistic because stare decisis is a dynamic process whereby, applying the precepts of formal legal logic, …

A Transatlantic Analysis Of Eu And U.S. Strategies In “Green Procurement", Marta Andhov, Christopher R. Yukins

GW Law Faculty Publications & Other Works

As governments the world over move to reduce global warming, public procurement has become an increasingly important means of leveraging governments’ vast purchasing power to reduce greenhouse gas (GHG) emissions through “green” or environmentally sustainable procurement. This article reviews emerging strategies in green procurement in the European Union and the United States. The article notes that those green procurement strategies are remarkably consistent on both sides of the Atlantic, from sector-specific preferences for low-carbon products to eco-labels to life-cycle cost analyses which take into account broader environmental impacts. On both sides of the Atlantic, however, parallel problems have emerged as …

The Future Of Jurisdiction, Paul S. Berman

GW Law Faculty Publications & Other Works

A new paradigm for conceptualizing the doctrine of personal jurisdiction is long overdue. In the 19th century the U.S. Supreme Court established a firm territorialist approach to jurisdiction befitting a geographically spread-out country with many local micro-economies. The more flexible “minimum contacts” test articulated in 1945 by International Shoe v. Washington ushered in a 20th century vision responding to increased automotive transportation and national industrial production. But now, at least three decades into the Internet and information economy era, the U.S. Supreme Court has yet to land on a coherent jurisdictional framework for the new century.

It’s not for want …

Review Essay: Marta Cartabia And Nicola Lupo, “The Constitution Of Italy: A Contextual Analysis” (2023), Francesca Bignami

GW Law Faculty Publications & Other Works

In this review essay, I showcase aspects of Marta Cartabia’s and Nicola Lupo’s The Constitution of Italy that set it apart from standard texts and that make it an excellent resource on Italian government and public law. Then, I focus on two elements of the Italian constitutional order that are discussed in the book and that are unique when seen in comparative context—the non-hierarchical organization of the Italian judiciary and the salience of social rights. I argue that future research on these aspects of the Italian case could make an important contribution to cutting-edge debates in the field of comparative …

We Need A New Glass-Steagall Act To End The Toxic Symbiosis Between Universal Banks And Shadow Banks, Which Professor Corrigan Has More Fully Revealed, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

Patrick Corrigan’s recent article highlights the abuses of securitization by universal banks during the subprime lending boom that led to the Global Financial Crisis of 2007–09 (GFC). Professor Corrigan’s article focuses on what Zoltan Pozsar and other researchers have called “internal” shadow banking—namely, the origination and securitization of hazardous loans by universal banks through nonbank affiliates, including broker-dealer subsidiaries and off-balance- sheet securitization vehicles. I agree with Professor Corrigan that the enormous credit risks generated by universal banks and their “internal” shadow banking affiliates played a major role in precipitating the GFC.

Professor Corrigan’s article gives less attention to what …

The New Gender Perspective: The Dawn Of Intersectional Autonomy In Women’S Rights, Rosa Celorio

GW Law Faculty Publications & Other Works

International human rights jurisprudence has increasingly mandated state action which integrates a gender perspective, taking into consideration the discriminatory norms, harmful social practices, stereotypes, and violence that women have and still suffer. A range of supranational bodies have issued case decisions promoting the adoption of gender-sensitive legislation, policies, programs, and the establishment of administration of justice systems well-trained and equipped to address women’s rights violations.

This article discusses how the conception of this gender perspective has evolved over time and is now centered on the pursuit of autonomy for women. Autonomy is presented as a key ingredient to ensure due …

A Quartet Of Decisions That Cripple Agencies, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

Professor Pierce summarizes the four major administrative law decisions that the Supreme Court issued at the end of its 2023-2024 Term and predicts their effects.

Modern Military Justice: Cases And Materials (4th Ed.) (2024) (West Academic), Lisa M. Schenck

GW Law Faculty Publications & Other Works

This textbook comprehensively covers the modern military justice system of the United States, under the Uniform Code of Military Justice. This text is appropriate for all students, with or without prior military experience. It covers court-martial procedures, substantive criminal law, and nonjudicial punishment under the Uniform Code of Military Justice, in addition to the Military Extraterritorial Jurisdiction Act, which gives federal courts jurisdiction over certain acts committed abroad. Materials from every Service within the Armed Forces show how the military justice system addresses all criminal offenses, ranging from minor infractions to serious offenses, such as the misconduct of soldiers at …

Disability, Race, And Immigration: The Intersectional Impact Of Policing, Tania N. Valdez

GW Law Faculty Publications & Other Works

Law enforcement officers commonly must respond to situations in which a person is experiencing acute symptoms of a mental illness. Yet from the first moment of police involvement, these community members face the possibility of negative outcomes. Consequences include officers' use of excessive force leading to injury or death, criminal arrest and prosecution that results in deprivation of liberty, separation from the community, and the creation of a permanent criminal record that affects other rights.

Although potential violence and criminalization are important reasons to avoid relying on police during mental health events, another key consideration is often ignored in the …