Legislation Commons^™

Antitrust Antitextualism, Daniel A. Crane

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Judges and scholars frequently describe antitrust as a common-law system predicated on open-textured statutes, but that description fails to capture a historically persistent phenomenon:judicial disregard of the plain meaning of the statutory texts and manifest purposes of Congress. This pattern of judicial nullification is not evenly distributed: when the courts have deviated from the plain meaning or congressional purpose, they have uniformly done so to limit the reach of antitrust liability or curtail the labor exemption to the benefit of industrial interests. This phenomenon cannot be explained solely or even primarily as a tug-of-war between a progressive Congress and conservative …

Is New York's Market-To-Market Act Unconstitutionally Retroactive?, Reuven S. Avi-Yonah, David Gamage, Darien Shanske, Kirk J. Stark

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In this installment of Academic Perspectives on SALT, the authors argue that if New York’s proposed Billionaire Mark-to-Market Tax Act is enacted, it should be upheld against any constitutional challenge based on retroactivity.

The Baby And The Bathwater: Reflections On The Tcja’S International Provisions, Reuven S. Avi-Yonah

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In this article, the author considers how the international provisions of the Tax Cuts and Jobs Act could be improved.

Is Gilti Constitutional?, Reuven S. Avi-Yonah

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In this article, Avi-Yonah argues that the global intangible low-taxed income regime may be an unconstitutional attempt to tax the foreign-source income of foreign entities, and he offers an alternative.

Equality And Sufficiency In Health Care Reform, Gabriel Scheffler

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Most Americans believe that health care is a right, not a privilege. Yet debates over health care reform frequently fail to distinguish between two distinct conceptions of the right to health care: one which focuses on sufficient access to health care-what I refer to as the Right to a Decent Minimum-and a second which focuses on equality in access to health care what I refer to as the Right to Equal Access. These two conceptions of the right to health care in turn support two distinct categories of proposals for expanding health insurance coverage. The Right to Equal Access justifies …

A Call For An Intersectional Feminist Restorative Justice Approach To Addressing The Criminalization Of Black Girls, Donna Coker, Thalia Gonzalez

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No abstract provided.

Courts Beyond Judging, Michael C. Pollack

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Across all fifty states, a woefully understudied institution of government is responsible for a broad range of administrative, legislative, law enforcement, and judicial functions. That important institution is the state courts. While the literature has examined the federal courts and federal judges from innumerable angles, study of the state courts as institutions of state government — and not merely as sources of doctrine and resolvers of disputes — has languished. This Article remedies that oversight by drawing attention for the first time to the wide array of roles state courts serve, and by evaluating the suitability of both the allocation …

Defining Who Is An Employee After A.B.5: Trading Uniformity And Simplicity For Expanded Coverage, Edward A. Zelinsky

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My assessment of California’s A.B.5 differs from the evaluation advanced by the advocates and opponents of that legislation: I conclude that A.B.5 made a significant but limited expansion of the coverage of California labor law but at a notable cost. Even as A.B.5 broadened the reach of the Golden State’s labor protections, A.B.5 also made the definition of "employee” more complex and less uniform. Those seeking federal or state legislation like A.B.5 confront the same trade-off under which greater coverage is achieved at the expense of more complexity and less uniformity in the definition of who is an employee. The …

From The Frying Pan To The Fire: Scotus’ Fsia Inaction As Further Permitting Executive Branch Intervention In “Takings Exception” Cases And Its Consequences In Forcing Holocaust Plaintiffs To Return To Europe, Richard H. Weisberg

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The Supreme Court of the United States (“SCOTUS”) very recently punted and left wide a circuit split on a key question under the Foreign Sovereign Immunities Act (“FSIA”): Do plaintiff Holocaust victims need to return to the country that wronged them in order to proceed in a United States federal court that otherwise had jurisdiction over their claims? While sending down unresolved a conflict between the D.C. and Seventh Circuits, in a companion case also involving Holocaust victims, SCOTUS essentially ended an action against Germany by taking the strong suggestion of the Executive Branch through its Solicitor General that a …

Unwaivable: Public Enforcement Claims And Mandatory Arbitration, Myriam E. Gilles, Gary Friedman

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This essay, written for a conference on the “pathways and hurdles” that lie ahead in consumer litigation, is the first to examine the implications of California’s recent jurisprudence holding public enforcement claims unwaivable in standard-form contracts of adhesion, and the inevitable clash with the U.S. Supreme Court’s decisional law interpreting the Federal Arbitration Act. With its rich history of rebuffing efforts to deprive citizens of public rights through private contract, California provides an ideal laboratory for exploring this escalating conflict.

Back To The Future: Creating A Bipartisan Environmental Movement For The 21st Century, David M. Uhlmann

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With a contentious presidential election looming amidst a pandemic, economic worries, and historic protests against systemic racism, climate action may seem less pressing than other challenges. Nothing could be further from the truth. To prevent greater public health threats and economic dislocation from climate disruption, which will disproportionately harm Black Americans, people of color, and indigenous people, this Comment argues that we need to restore the bipartisanship that fueled the environmental movement and that the fate of the planet—and our children and grandchildren—depends upon our collective action.

The Support-Or-Advocacy Clauses, Richard Primus, Cameron O. Kistler

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Two little known clauses of a Reconstruction-era civil rights statute are potentially powerful weapons for litigators seeking to protect the integrity of federal elections. For the clauses to achieve their potential, however, the courts will need to settle correctly a contested question of statutory interpretation: do the clauses create substantive rights, or do they merely create remedies for substantive rights specified elsewhere? The correct answer is that the clauses create substantive rights.

Symposium: The California Consumer Privacy Act, Margot Kaminski, Jacob Snow, Felix T. Wu, Justin Hughes

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This symposium discussion of the Loyola of Los Angeles Law Review focuses on the newly enacted California Consumer Privacy Act (CPPA), a statute signed into state law by then-Governor Jerry Brown on June 28, 2018 and effective as of January 1, 2020. The panel was held on February 20, 2020.

The panelists discuss how businesses are responding to the new law and obstacles for consumers to make effective use of the law’s protections and rights. Most importantly, the panelists grapple with questions courts are likely to have to address, including the definition of personal information under the CCPA, the application …

A Positive Dialectic: Beps And The United States, Reuven S. Avi-Yonah

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This essay addresses the interaction between the changes in the international tax regime identified by Mason and U.S. international tax policy. Specifically, I will argue that contrary to the general view, the United States actively implemented the Organisation for Economic Co-Operation and Development (OECD)/G20 Base Erosion and Profit Shifting (BEPS) recommendations through the Tax Cuts and Jobs Act of 2017 (TCJA). Moreover, the changes of the TCJA influenced the current OECD effort of BEPS 2.0. Thus, the current state of affairs can be characterized as a constructive dialogue: The OECD moves (BEPS 1), the United States responds (TCJA), the OECD …

Legitimacy And Agency Implementation Of Title Ix, Samuel R. Bagenstos

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Title IX of the Education Amendments of 1972 prohibits sex discrimination by programs receiving federal education funding. Primary responsibility for administering that statute lies in the Office for Civil Rights of the Department of Education (OCR). Because Title IX involves a subject that remains highly controversial in our polity (sex roles and interactions among the sexes more generally), and because it targets a highly sensitive area (education), OCR’s administration of the statute has long drawn criticism. The critics have not merely noted disagreements with the legal and policy decisions of the agency, however. Rather, they have attacked the agency’s decisions …

Federal Forum Provisions And The Internal Affairs Doctrine, Dhruv Aggarwal, Albert H. Choi, Ofer Eldar

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A key question at the intersection of state and federal law is whether corpo- rations can use their charters or bylaws to restrict securities litigation to federal court. In December 2018, the Delaware Chancery Court answered this question in the negative in the landmark decision Sciabacucchi v. Salzberg. The court invalidated “federal forum provisions” (“FFPs”) that allow companies to select federal district courts as the exclusive venue for claims brought under the Secur- ities Act of 1933 (“1933 Act”). The decision held that the internal affairs doc- trine, which is the bedrock of U.S. corporate law, does not permit charter …

Fee-Shifting Statutes And Compensation For Risk, Maureen S. Carroll

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A law firm that enters into a contingency arrangement provides the client with more than just its attorneys' labor. It also provides a form of financing, because the firm will be paid (if at all) only after the litigation ends; and insurance, because if the litigation results in a low recovery (or no recovery at all), the firm will absorb the direct and indirect costs of the litigation. Courts and markets routinely pay for these types of risk-bearing services through a range of mechanisms, including state fee shifting statutes, contingent percentage fees, common-fund awards, alternative fee arrangements, and third-party litigation …

Why R&D Should Be Allocated To Subpart F And Gilti, Stephen E. Shay, Reuven S. Avi-Yonah, Patrick Driessen, J. Clifton Fleming Jr., Robert J. Peroni

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This article responds to the notice of proposed rulemaking under sections 861 and 904 (REG105495-19) published in the Federal Register December 17, 2019 (the proposed regulations). The proposed regulations would not allocate U.S. shareholder deductions for research and development or experimentation (R&D or R&E) expenditures under section 174 (R&D deductions) to a gross income inclusion under section 951 (subpart F inclusion) or section 951A (global intangible low-taxed income)1 from a controlled foreign corporation for foreign tax credit limitation purposes.

Making Employment Arbitration Fair And Accessible, Theodore J. St. Antoine

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Mandatory arbitration agreements require employees, as a condition of employment, to agree to arbitrate all employment disputes instead of filing court suits. The Supreme Court has approved such agreements but many labor experts oppose them. The U.S. House of Representatives has passed a bill to prohibit pre-dispute agreements, the common form for mandatory arbitrations. This article argues that the House bill would have the practical effect of virtually eliminating employment arbitration. Instead, proposals are presented for either legislative or judicial steps to ensure that employment arbitration is fair and accessible. Requirements would include: (1) voluntary agreements on the part of …

Rodriguez, Tucker, And The Dangers Of Textualism, Reuven S. Avi-Yonah

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The Supreme Court is increasingly turning toward textualism in interpreting statutes. This is part of its general hostility toward judge-made law, as evidenced by its recent unanimous decision in Rodriguez that there should be no federal common law except in extraordinary circumstances. Textualism poses a particular danger in the tax context because the Internal Revenue Code is so complicated and lends itself to manipulation so that courts have since the 1930s used a variety of judge-made legal doctrines to prevent such results. The classic Gregory decision from 1935 involved just such a case: The literal application of the code resulted …

Disability Rights And The Discourse Of Justice., Samuel Bagenstos

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Although the ADA has changed the built architecture of America and dramatically increased the visibility of disabled people, it has not meaningfully increased disability employment rates. And the statute continues to provoke a backlash. Disability rights advocates and sympathizers offer two principal stories to explain this state of affairs. One, the “lost-bipartisanship” story, asserts that disability rights were once an enterprise broadly endorsed across the political spectrum but that they have fallen prey to the massive rise in partisan polarization in the United States. The other, the “legal-change-outpacing-social- change” story, asserts that the ADA was essentially adopted too soon—that the …

The New Qui Tam: A Model For The Enforcement Of Group Rights In A Hostile Era, Myriam E. Gilles, Gary Friedman

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The present Administration has made clear it has no interest in enforcing statutes designed to protect workers, consumers, voters, and others. And, as we have chronicled in prior work, the ability of private litigants to enforce these laws has been undercut by developments in the case law concerning class actions—particularly class-banning arbitration clauses. As these critical enforcement methods recede, will alternative methods of prosecuting claims arise? How might they work? Are they politically and fiscally sustainable? We focus here on a promising approach just now coming into view: qui tam legislation authorizing private citizens to bring representative claims on behalf …

Is Obamacare Really Unconstitutional?, Nicholas Bagley

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On December 18, 2019, just 3 days after the close of open enrollment on the exchanges and on the same day the House of Representatives impeached President Donald Trump, a conservative appeals court handed the President a major victory in his crusade against the Affordable Care Act (ACA). Over a stern dissent, the U.S. Court of Appeals for the Fifth Circuit declared that the law’s individual mandate is unconstitutional and that the entire rest of the law might therefore be invalid.

Transition Without Transformation: The Legacy Of Sudan's Comprehensive Peace Agreement, Gene Carolan

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In recent years, the transitional justice framework has expanded to include a broader notion of transformative justice, which strives for socio-political reform in addition to legal accountability. Over the course of two civil wars, Sudan has grappled with various attempts at transition and transformation with mixed results. Though the 2005 Comprehensive Peace Agreement brought an end to decades of North–South conflict, South Sudan’s subsequent descent into civil war has been characterised by a flawed transition and a lack of any immediate transformative potential. This paper analyses the Comprehensive Peace Agreement’s transitional mechanisms. In doing so, it explores how certain mechanisms …

Golden Parachutes And The Limits Of Shareholder Voting, Albert H. Choi, Andrew C.W. Lund, Robert Schonlau

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With the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, Congress attempted to constrain change-in-control payments (also known as “golden parachutes”) by giving shareholders the right to approve or disapprove such payments on an advisory basis. This Essay is the first to empirically examine the experience with the Say-on-Golden-Parachute (“SOGP”) vote. We find that unlike shareholder votes on proposed mergers, there is a significant amount of variation with respect to votes on golden parachutes. Notwithstanding the variation, however, the SOGP voting regime is likely ineffective in controlling golden parachute (“GP”) compensation. First, proxy advisors seem …

Imaginary Bottles, Jessica Litman

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This essay, written for a symposium commemorating John Perry Barlow, who died on February 7, 2018, revisits Barlow's 1994 essay for WIRED magazine, "The Economy of Ideas: A Framework for patents and copyrights in the Digital Age (everything you know about intellectual property is wrong)." Barlow observed that networked digital technology posed massive and fundamental challenges for the markets for what Barlow termed “the work we do with our minds” and for the intellectual property laws designed to shape those markets. He predicted that those challenges would melt extant intellectual property systems into a smoking heap within a decade, and …

The Elusive Object Of Punishment, Gabriel S. Mendlow

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All observers of our legal system recognize that criminal statutes can be complex and obscure. But statutory obscurity often takes a particular form that most observers have overlooked: uncertainty about the identity of the wrong a statute aims to punish. It is not uncommon for parties to disagree about the identity of the underlying wrong even as they agree on the statute’s elements. Hidden in plain sight, these unexamined disagreements underlie or exacerbate an assortment of familiar disputes—about venue, vagueness, and mens rea; about DUI and statutory rape; about hate crimes, child pornography, and counterterrorism laws; about proportionality in punishment; …

Neglecting Nationalism, Gil Seinfeld

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Federalism is a system of government that calls for the division of power between a central authority and member states. It is designed to secure benefits that flow from centralization and from devolution, as well as benefits that accrue from a simultaneous commitment to both. A student of modern American federalism, however, might have a very different impression, for significant swaths of the case law and scholarly commentary on the subject neglect the centralizing, nationalist side of the federal balance. This claim may come as a surprise, since it is obviously the case that our national government has become immensely …

The Americans With Disabilities Act: Legal And Practical Applications In Child Protection Proceedings, Joshua B. Kay

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Parents with disabilities, particularly those with intellectual disability and/or mental illness, are disproportionately represented in the child protection system.1 Once involved in the system, they are far more likely than parents without disabilities to have their children removed and their parental rights terminated. The reasons for this are many. Parents with disabilities are relatively likely to experience other challenges that are themselves risk factors for child protection involvement. In addition, child protection agencies, attorneys, courts, and related professionals often lack knowledge and harbor biases about parents with disabilities, increasing the likelihood of more intrusive involvement in the family. Yet research …

The Games They Will Play: Tax Games, Roadblocks, And Glitches Under The 2017 Tax Legislation, David Kamin, David Gamage, Ari Glogower, Rebecca Kysar, Darien Shanske, Reuven S. Avi-Yonah, Lily Batchelder, J. Clifton Fleming, Daniel Hemel, Mitchell Kane, David Miller, Daniel Shaviro, Manoj Viswanathan

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The 2017 tax legislation brought sweeping changes to the rules for taxing individuals and business, the deductibility of state and local taxes, and the international tax regime. The complex legislation was drafted and passed through a rushed and secretive process intended to limit public comment on one of the most consequential pieces of domestic policy enacted in recent history. This Article is an effort to supply the analysis and deliberation that should have accompanied the bill’s consideration and passage, and describes key problem areas in the new legislation. Many of the new changes fundamentally undermine the integrity of the tax …