Law and Economics Commons^™

Algorithmic Tax Ownership, Young Ran (Christine) Kim, Dmitry Erokhin

Articles

Tax ownership is a crucial concept for determining tax liabilities, compliance, and enforcement. However, neither the courts nor the IRS has provided clear guidance on how to analyze it. Since the Supreme Court first outlined a twenty-six-factor test for determining tax ownership in Frank Lyon Co. v. United States in 1978, this multifactor test has remained largely unchanged, and there has been no further guidance from the courts or the IRS to this day. Even tests with shorter lists of factors only add to the confusion regarding compliance and enforcement, as there is no clarity on which factors are most …

The Apathy Economy: Patents, Advertising, And Consumer Indifference, Gavin J. Milczarek-Desai, Derek E. Bambauer

Cardozo Arts & Entertainment Law Journal

Patents function as signals as well as rights to exclude. They inform competitors, investors, employees, and consumers about the invention and its owner. How this information affects consumers is not well understood. Existing studies disagree about how advertising a product or service as patented, or patent pending, affects the price consumers will pay. This Article offers the first major empirical study of that question andfinds that consumers behave with surprising rationality: they will not pay any price premium for a patented product. A product's patent status conveys little information about whether it is superior to competing offerings. The results hold …

Trophy Assets, Aneil Kovvali

Articles

Rich people like to own things that make them look cool. When the thing in question is a car, house, or boat, the implications are limited. But sometimes very rich people own assets that are more important. Within media, Elon Musk acquired Twitter, Jeff Bezos ac-quired the Washington Post, and Patrick Soon-Shiong acquired the Los Angeles Times. There has also been a craze for aerospace: Musk with Space X, Bezos with Blue Origin, Richard Branson with Virgin Galactic, and going back further, Howard Hughes with Hughes Aircraft Company. It is often difficult to understand the behavior in purely finan-cial terms, …

Regulating Robotaxis, Bryant Walker Smith, Matthew T. Wansley

Articles

In several sunbelt cities, commercial robotaxi service has arrived. The leading robotaxi company is providing over 400,000 trips per week. The industry claims that robotaxis will save lives and provide convenient and affordable mobility. Critics counter that they will increase congestion, undermine transit, and subject the public to ubiquitous surveillance. We argue that the social impact of robotaxis depends on how they are regulated. We emphasize two points missing from the debate. First, some of the benefits of robotaxis may be political rather than technological—some longstanding public policy goals may become viable in a robotaxi world. Second, letting one private …

Did Copyright Fail Music Artists?, Rachel Landy

Articles

Music soundtracks our lives, supports over two million domestic jobs annually, and is listened to more than ever before. The record industry is thriving, having made over $17 billion in 2024. Yet, many professional artists are barely surviving. Artists signed to record deals lament royalty payments that amount to a fraction of a penny for each stream of their songs. So where is all the money going, and who, or what, is to blame? Public rhetoric and existing legislative proposals implicate copyright as a guilty party. But are those concerns justified?

This Article unpacks the music supply chain. It builds …

Antitrust’S Consumer Tradeoffs, Samuel N. Weinstein

Articles

In modern antitrust law, courts are required to ask only one question: did the challenged action harm consumers? This Article asks a different question: which consumers? Over the last few decades, the Supreme Court has increasingly required antitrust plaintiffs to prove not only that they were harmed, but also that their harm outweighed any other consumers’ gains. The doctrine forces courts to pit groups of consumers against each other. In Amex, it was merchants against credit card holders. In Brooke Group, it was consumers buying a product during predation against consumers buying it during recoupment. In cases involving aftermarkets for …

Taxing Litigation Finance, Young Ran (Christine) Kim

Articles

The emerging litigation finance industry has the capacity to expand access to justice but also raises important legal and ethical questions. Although much has been said about the industry’s potential to increase frivolous lawsuits and permit improper control over a claim by the funders, scholarly discussion on the proper tax treatment of the parties involved has fallen by the wayside. The problem arises in classifying litigation finance contracts as either a nonrecourse loan, immediate sale, or variable prepaid forward contract, all of which discretely impact the timing and character of income. Unfortunately, courts have traditionally found it difficult to draw …

Gregory Keating’S Framework For Understanding Tort Law, Martin J. Stone

Articles

Gregory Keating seeks to ground tort rights and obligations in a balancing of people’s objective interests in liberty and security, with security taking priority because it is a requirement of effective agency. I argue that Keating’s approach shares in the structural shortcomings of the economic theories he criticizes. Both theories appeal to monadic, free-standing values (efficiency, effective agency) that concern individual parties in isolation; neither theory gives an adequate account of tort law’s relational (transactional) structure. The common law distinction between misfeasance and nonfeasance illustrates the point. Keating’s harm-based framework fails to explain tort law’s most basic duty limitation, the …

Corporate Evolution, Omari Scott Simmons

Cardozo Law Review

Political entrepreneurs have declared war on environmental, social, and governance policies ("ESG"), going so far as to attempt to criminalize ESG-influenced investing. They seek a return to some real or imagined past. They amplify and elevate their efforts into mainstream public discourse. They pursue extraordinary goals and tactics to disrupt and even dismantle institutional structures, norms, and established processes. The contemporary anti-ESG backlash is not simply a battle over corporate purpose and the dueling perspectives of shareholder primacy versus stakeholderism or disputes concerning sustainable investment and operational strategies. It reflects aggressive political entrepreneurship and the tension between competing narratives: stasis, …

We The People... Deserve Fair Taxes, Doron Narotzki, Tamir Shanan

Cardozo Journal of Equal Rights & Social Justice

In a world where economic inequality is deepening, tax law has emerged as one of the most powerful tools for shaping social justice. This Article explores how progressive taxation serves not only as a fiscal mechanism but as a reflection of societal values and the moral obligations of wealth. With legal methodologies such as Purposivism, Originalism, and Living Constitutionalism providing different interpretative lenses, this Article delves into the crucial discourse surrounding income, tax avoidance, deductions, and wealth taxation.

Through an analysis of real-world tax policies and legal precedents, the Article examines how these methodologies either perpetuate or challenge the current …

The End(S) Of Bankruptcy Exceptionalism: Purdue Pharma And The Problem Of Social Debt, Jonathan C. Lipson, Pamela Foohey

Cardozo Law Review

The Supreme Court’s recent 5-4 decision in the controversial chapter 11 bankruptcy reorganization of opioid-maker Purdue Pharma ends the use of nonconsensual third-party “releases,” which discharge (eliminate) liabilities of nondebtors who may share liability with a corporate debtor. Although the majority opinion is correct that the Bankruptcy Code does not permit this, it failed to recognize the problematic exceptionalism of the lower courts which approved those releases or the “social” qualities of Purdue Pharma’s mass tort liability.

Bankruptcy exceptionalism has been a contested concept since it emerged over fifteen years ago and reflects a willingness to bend the rule of …

Al Assisted Inventing And Its Impact On The Patent System, Ben Gross

Cardozo Arts & Entertainment Law Journal

The note examines the challenges posed by AI-assisted inventing to the patent system, particularly focusing on the "black box" nature of AI, which obscures the inventive process and complicates patent requirements such as inventorship and disclosure.

Property And Information, Jeanne L. Schroeder, David G. Carlson

Articles

The article proceeds as follows. As the information theory is a reaction to legal realism, Part I explores its antecedents in the work of Wesley Newcomb Hohfeld and Ronald H. Coase. Part II presents the information theory as arising from Professor Smith’s interpretation of the Coase theorem.11 In the imaginary world of TC0, we are supposedly indifferent to organizing by property and organizing by contract. Property eclipses contract as the organon of the economy because property reduces the cost of delineation and processing—of speaking and comprehending. We show that this theory is founded on a misunderstanding of Coase. Part III …

Bounded Entities And (Some Of) Their Discontents, Saurabh Vishnubhakat

Articles

In his new article An Organizational Theory of International Technology Transfer, Professor Peter Lee offers two richly detailed accounts at once. One is a novel theoretical framework of "bounded entities" that generalizes both from the classic theory of the firm and, of more recent vintage, from the knowledge-based theory of the firm to specify a broader notion of organizations that are bounded in the sense of robust internal integration through corporate or contractual means. In short, such entities are not firms but resemble them in consequential ways. The other account is a practical elaboration of bounded entities that are multinational …

Whither Affirmatively Furthering Fair Housing In New York? The Affh Mandate In An Era Of Land Use Reform, Timothy Gentles

Cardozo Law Review

New York is experiencing a severe housing affordability crisis. This crisis is driven by a housing supply shortfall decades in the making. The state’s housing shortage exacerbates economic, racial, and regional inequalities, and harms the economy by limiting growth. New York’s struggles with housing affordability reflect a national surge in housing costs since the pandemic that has disproportionally impacted communities of color. Yet, in many respects, the crisis in New York is worse than that in other states with comparably robust housing demand. The extent of New York’s housing affordability crisis has led to growing momentum behind legislative action in …

Unblocking The Chain: Leveraging Mediation And Negotiation In Crypto Exchange User Disputes, Jane Perov

Cardozo Journal of Conflict Resolution

No abstract provided.

Constructing A Taxonomy Of Financial Consumer Protection Policy And Assessing The New Consumer Duty In The United Kingdom's Financial Sector, Iris H-Y Chiu, Wai-Yee Wan

Cardozo International & Comparative Law Review

The article critically examines the UK's Consumer Duty, introduced by the Financial Conduct Authority (FCA), arguing that while it represents a significant step in financial consumer protection, it falls short in addressing welfare outcomes and distributive justice. The Duty focuses on consumer empowerment but neglects key aspects of consumer citizenship, such as access to essential financial services and guarantees of product quality. The article proposes a taxonomy of consumer protection levels to evaluate the Duty's effectiveness and advocates for a more robust framework that prioritizes financial inclusion and long-term consumer welfare.

Reducing The American National Debt By Negotiating New Tax Practices On Internal Revenue Code Sec. 501(C) Organizations, Armando D. Gonzalez

Cardozo Journal of Conflict Resolution

No abstract provided.

Against Gap-Filling, Noah C. Chauvin

Cardozo Law Review de•novo

Legal scholars delight in gap-filling. They frequently claim that their works have identified a gap in the literature and to have filled (or begun filling) that gap. However, all too often, these same papers fail to explain why the gap needed to be filled at all. Indeed, despite a robust tradition of meta-scholarship, the legal literature is largely devoid of a theory of academic gap-filling. This essay fills that gap, arguing that gap-filling for the sake of gap-filling is an error for three interconnected reasons. First, gaps might exist for a good reason. Second, concern with gap-filling is often a …

Antisocial Innovation, Christopher Buccafusco, Samuel N. Weinstein

Articles

Innovation is a form of civic religion in the United States. In the popular imagination, innovators are heroic figures. Thomas Edison, Steve Jobs, and (for a while) Elizabeth Holmes were lauded for their vision and drive, and seen to embody the American spirit of invention and improvement. For their part, politicians rarely miss a chance to trumpet their vision for boosting innovative activity. Popular and political culture alike treat innovation as an unalloyed good. And the law is deeply committed to fostering innovation, spending billions of dollars a year to make sure society has enough of it. But this sunny …

Regulating Driving Automation Safety, Matthew Wansley

Articles

Over forty thousand people die in motor vehicle crashes in the United States each year, and over two million are injured. The careful deployment of driving automation systems could prevent many of these deaths and injuries, but only if it is accompanied by effective regulation. Conventional vehicle safety standards are inadequate because they can only test how technology performs in a controlled environment. To assess the safety of a driving automation system, regulators must observe how it performs in a range of unpredictable, real world edge cases. The National Highway Traffic Safety Administration (NHTSA) is trying to adapt by experimenting …

A No Man’S Land Of Fair Use: Marano V. The Metropolitan Museum Of Art, Sarah Landry

Cardozo Law Review

No abstract provided.

Net Positive: Imposing A Duty To Warn On Baseball Stadium Operators, Eric Rothman

Cardozo Arts & Entertainment Law Journal

The note argues that the Baseball Rule, which shields stadium operators from liability for foul ball injuries if they provide minimal protections, is outdated and inadequate given modern conditions. It proposes modifying the rule to include a duty to warn spectators of each foul ball as it is hit, drawing on Japan's successful implementation of a real-time warning system. This approach balances spectator safety with the preservation of baseball's unique fan experience.

Title Theft, Stewart E. Sterk

Articles

Real property owners across the country have been targeted by scammers who prepare deeds purporting to convey title to property the scammers do not own. Sometimes, the true owners are entirely unaware of these bogus transfers. In other instances, the scammers use misrepresentation to induce unsophisticated owners to sign documents they do not understand. Property doctrine protects owners against forgery and fraud—the primary vehicles scammers use in their efforts to transfer title. Owners enjoy protection not only against the scammers themselves, but generally against unsuspecting purchasers to whom the scammers transfer purported title. Recovery of title, however, involves costs and …

The Private Attorney General In A Time Of Hyper-Polarized Politics, Myriam E. Gilles

Articles

With the enactment of the Federal Trade Commission Act (“FTC Act”) in 1914 and the Wheeler–Lea Act in 1938, Congress sought to establish a brawny federal consumer protection regime to guard against the myriad unfair and deceptive practices that threatened harm to American consumers. But courts in this era interpreted these statutes to confer exclusive enforcement authority in the Federal Trade Commission (“FTC”), declining to infer a private right of action. For many decades, the resulting enforcement gap in consumer protection law was filled largely by state Unfair and Deceptive Practices Acts (“UDAPs”), which sanction litigation by both public and …

Sanctions, Financial Regulation, And Crypto In Latin America, Camilla Oliva

Cardozo International & Comparative Law Review

The note examines the intersection of corruption, financial regulation, and cryptocurrency in Latin America, arguing that U.S. sanctions and the lack of effective financial regulation have inadvertently enabled corruption in the region. It explores how cryptocurrencies, while offering potential solutions to financial instability, are also exploited by corrupt actors and governments to circumvent sanctions and regulatory frameworks. The analysis highlights the dual role of cryptocurrencies as both a tool for financial inclusion and a means of evading accountability, particularly in countries like Venezuela and El Salvador.

The Challenge Of Holding Big Business Accountable, Roy Shapira

Cardozo Law Review

In July 2021, a sweeping Executive Order committed the entire U.S. federal government to reining in big business. Dozens of proposed bills at the state level similarly target big business for stricter regulatory treatment. But unlike in past decades, today’s calls to break up and intensely regulate big business do not hinge on harms to consumers qua consumers. Instead, today’s anti-bigness sentiment rests to a large extent on the claim that big is bad because it is ungovernable. Giant corporations with market power treat legal requirements as mere recommendations, and routinely engage in behavior that harms our civil liberties and …

Love In The Time Of Covid, Jeanne L. Schroeder

Articles

A striking aspect of the current American cultural divide is divergent attitudes towards expertise, generally, and masking and vaccination to mitigate the Covid-19 pandemic, specifically. Liberal pundits profess shock that Red State America won’t just ‘trust the science’. On the right, politicians and television personalities reject mandates in the name of ‘freedom’.

Lacanian discourse theory gives insight into this. The rejection of expertise is an example of an ‘hysteric discourse’ challenging a ‘university discourse’: the regime of experts. An hysteric discourse is a critique of rules imposed by experts by the subjects-subjected-to them. Hysteria can lead, in turn, to a …

Patent Law’S Externality Asymmetry, Peter Lee

Cardozo Law Review

Technologies such as social media, autonomous vehicles, and “big data” analytics generate enormous benefits for society, but they also create substantial harms. Many of these effects take the form of externalities—external benefits and harms that a decisionmaker (such as an inventor) imposes on third parties without charge or compensation. Considering negative externalities, for example, social media networks spread misinformation throughout the electorate, autonomous vehicles threaten the jobs of millions of professional drivers, and predictive policing based on big data can lead to unreasonable searches and seizures. Externalities can cause inefficient resource allocation, and the classic remedy is to “internalize” externalities …

Portraits Of Bankruptcy Filers, Pamela Foohey, Robert M. Lawless, Deborah Thorne

Articles

One in ten adult Americans has turned to the consumer bankruptcy system for help. For almost forty years, the only systematic data collection about the people who file bankruptcy has come from the Consumer Bankruptcy Project (CBP), for which we serve as co-principal investigators. In this Article, we use CBP data from 2013 to 2019 to describe who is using the bankruptcy system, providing the first comprehensive overview of bankruptcy filers in thirty years. We use principal component analysis to leverage these data to identify distinct groups of people who file bankruptcy. This technique allows us to situate the distinctions …