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TICnerships
Full text linkTenancy-in-common (TIC) ownership has been around for centuries, but the commercial use of TIC ownership of real property has accelerated over the last couple of decades. The impetus for TIC ownership of real property is twofold: (1) a desire property owners have to obtain the tax benefits of section 1031 of the Internal Revenue Code and (2) the desire property owners have to own property with other property owners and other professional managers and developers. Because section 1031 only applies to exchanges of real property, interests in partnerships and LLCs—the most common type of real property ownership—do not qualify for section 1031 nonrecognition. Thus, property owners enter into TIC arrangements, so transfers of their ownership interests will qualify for favorable section 1031 treatment. Such arrangements sound ideal, but there is a downside—for TIC arrangements to qualify as real property, for section 1031 purposes, the arrangement cannot include partnership attributes. Partnership attributes make co-ownership arrangements economically viable, so co-owners face the prospect of losing section 1031 treatment or foregoing co-ownership attributes that make the co-ownership arrangement palatable. A TICnership comes into existence when the co-owners of real property papered as a TIC arrangement enter into agreements that cause the arrangement to take on partnership attributes and become a partnership for tax purposes. Because section 1031 drives most TIC arrangements and because the co-owners would typically otherwise prefer to own property through a more economically palatable partnership or limited liability company, the number of TIC arrangements appears to be on the rise, and the number of TICnerships, as a percentage of total TIC arrangements, is also undoubtedly on the rise. This Article presents TICnerships as an increasing phenomenon in the real estate market. It describes how TICnerships come into existence, the law governing the classification of co-ownership arrangements as TICs or TICnerships for federal income tax purposes, and how federal income tax treats TICs and TICnerships differently. Most importantly, the Article shows how TICnerships can undermine the very tax treatment they are designed to provide and shows how property owners and their advisors can order affairs to preserve the desired section 1031 treatment and obtain the sought-after economic benefits of owning real property in a partnership or limited liability company
Reconsidering Scienter With Social Media: Adapting Rule 10b-5 in the Age of Elon Musk Tweets
Full text linkOver the last twenty years, the rise of social media has dramatically changed how the world communicates. One such transformation is the use of social media platforms to disseminate information regarding the financial markets, aiding investors in their trading decisions. While increased access to financial information has democratized retail consumers’ access to capital markets, it has also introduced a level of instability. Furthermore, social media enables individuals with mass followings to disseminate their thoughts, opinions, or information, potentially influencing investors’ behavior and creating an environment conducive to securities fraud. Since its promulgation, the United States Securities and Exchange Commission (SEC) has relied upon SEC Rule 10b-5 to investigate securities fraud claims. But, despite its historical significance, the Rule has not been substantively updated to address the evolving nature of securities fraud in the digital age. This Note reviews the timeline of Elon Musk’s acquisition of X (formerly Twitter), highlighting the correlation between his public statements via his personal Twitter account and the company’s share prices. The analysis serves as a case study illustrating how individuals with large public followings can exploit social media for market manipulation. Additionally, this Note explores the shortcomings of Rule 10b-5, specifically in terms of the scienter requirement, in bringing securities fraud actions involving social media and argues that liability should be extended under a standard of bad fait
The Geopolitics of Group Referrals to the International Criminal Court and its Implications on the Court\u27s Legitimacy and Credibility
Full text linkUnder the Rome Statute, situations are referred to the International Criminal Court (“ICC” or “Court”) either by a state party or the Security Council. In recent years, however, referrals from both sources have become difficult to come by. Instead, there is an evolving practice of referrals by a coalition of third states parties (“group referrals”). Yet, a group referral as a trigger mechanism does not have an explicit textual basis under the Rome Statute (“Statute” or “ICC Statute”). There is no rationale for it either, since a referral by a single state party is all that is needed to trigger the jurisdiction of the ICC. On the contrary, group referrals tend to be made by like-minded states parties against an unfriendly state or a geopolitical adversary. In other words, geopolitical consideration, rather than the pursuit of justice, appears to be the dominant feature in group referrals. That undercuts the legitimacy and credibility of the Court. Hence, there is a need to rethink the practice of group referrals
THE ENDURING RELEVANCE OF CONGRESS DESPITE THE COURT\u27S SHIFT TO “ORDINARY READER” STATUTORY INTERPRETATION
Full text linkHas Congress become irrelevant to statutory interpretation? The dominant theoretical and doctrinal paradigm in American statutory interpretation has always been the conversation between Congress and the courts. Today, however, the Court’s new, second-generation textualists claim they have left Congress behind. They argue they have changed textualism’s perspective, from an “insider” perspective focused on Congress’s textual choices, to an “outsider” perspective based on how “ordinary people” read statutes. The Court’s self-professed shift away from a legiscentric approach, if true, would be a seismic shift in the conception of the judicial role. Whereas judges and scholars—including first-generation textualists—had for a century focused on legislative supremacy and Congress’s practices and intentions, today, a majority of the Court claims its role is something entirely different. Rather than serve as a “junior partner” of the legislature, the Court says its role is to enforce a populist conception of how regular people encounter statutes, as well as the value of fair notice. But as it turns out, divorcing statutory meaning from Congress is not as simple as it looks. Our review of statutory interpretation cases over the past six Terms illustrates that, despite their protests, even the most ardent textualists’ opinions that purport to turn on ordinary meaning are in fact riddled with implicit—and sometimes explicit—assumptions about congressional intent and how Congress drafts, including surreptitious uses of legislative history. This Essay explores the Court’s rhetorical shift and why it has not been complete in doctrinal implementation. The congressional perspective in fact remains ubiquitous in the Court’s interpretive work, even as the Court disavows it
DRIVING CORPORATE ENVIRONMENTAL RESPONSIBILITY WITH TAX INCENTIVES AND CARBON TAXATION
Full text linkIn response to the worsening global climate crisis, this Note examines the potential role of tax policy in encouraging corporate environmental responsibility. Focusing on tax incentives and a proposed federal carbon tax, it explores how strategic tax measures could drive corporations to mitigate their environmental impact. Through an analysis of economic and regulatory measures, such as cap-and-trade and excise taxes, alongside recent legislation like the Inflation Reduction Act, this Note assesses the potential of tax credits and carbon taxes to reduce corporate emissions. It further discusses the emergence of benefit corporations, specifically B Corp certified companies, such as Patagonia and Green Hammer, as leaders in sustainability and explores how targeted tax incentives for these entities could encourage widespread adoption of sustainable practices. This Note ultimately argues that combining tax incentives for eco-conscious corporations with a federal carbon tax could create a comprehensive framework for motivating corporate action on climate change, aligning corporate financial success with environmental stewardship
Entire Fairness or Bust: The Burst of the 2020-2021 SPAC Bubble
Full text linkSpecial Purpose Acquisition Companies (SPACs) have skyrocketed in recent years as an alternative for taking private companies public through an initial public offering (IPO). SPACs are blank-check companies that raise capital through public exchanges for the “special purpose” of acquiring a privately held company. Once acquired, the private company will take the SPAC’s place on the public exchange, effectively accomplishing the same thing as a traditional IPO but without all the onerous reporting requirements and upfront costs. For these reasons, SPACs have become the next big thing in securities markets despite being around since the 1990s. Throughout 2020 and 2021, the market saw an unprecedented amount of SPACs go public, raising record amounts of cash. However, with all this newfound popularity also came greater scrutiny from SPAC shareholders, who slowly but surely began to see the inherent flaws in this seemingly successful investment vehicle. While much of the commentary and criticism surrounding SPACs has been primarily focused on federal securities laws, more focus ought to shift to the court’s treatment of how traditional fiduciary duties apply to SPAC sponsors who execute the de-SPAC transaction with the private company target. This is because SPAC sponsors stand to benefit immensely from any acquisition of a target company, no matter how profitable the outcome is for their shareholders. Recently, however, in this new wave of SPAC litigation, the Delaware Court of Chancery in In Re MultiPlan Corp. S’holders Litig., 268 A.3d 784 (Del. Ch. 2022) (MultiPlan) held that fiduciary principles and the entire fairness standard do, in fact, apply to shareholder claims. While the MultiPlan case surely opened the door to heightened fiduciary standards, greater clarity, protection, and uniformity are still needed
Frustrating Morals: Is There an Implied Reverse Morals Clause in Publishing Agreements?
Full text linkIn response to the #MeToo movement and the widespread condemnation of public figures for misconduct, book publishers adopted a standard contract provision used in other entertainment industries called a morals clause. Morals clauses allow a publisher to terminate the agreement if the author is subject to public condemnation. Although these provisions provide robust protection for publishers, these one-sided clauses provide no such protection for authors if publishers are subject to similar condemnation. Although authors may not have the leverage to negotiate reciprocal morals clauses, some authors may have an implied reverse morals clause through the frustration of purpose defense to breach of contracts claims. This Note argues that in certain circumstances, authors may be able to use the frustration of purpose defense to effectively terminate their publishing agreements in the event that their publisher is subject to widespread condemnation
The Pro Se Gender Gap
Full text linkThis article is the first to identify, name, and empirically measure the pro se gender gap. Drawing on a massive dataset of all federal civil dockets spanning ten years, it finds a 2-to-1 gender imbalance. For every federal woman pro se litigant there are two males. This finding is robust and stable. It holds true for plaintiffs, defendants, and other parties. It is also true across most subject areas, time, length of litigation, and across states, districts, and circuits. The study excludes prisoner-rights and habeas petitions–including them would widen the gender gap even further. This gender gap reveals a troubling disparity in who has effective access to justice, whose stories are heard, who shapes the development of the law, and whose rights are vindicated by federal courts. Labeling and measuring the pro se gender gap also provides a benchmark to test the efficacy of future policy interventions. As such, this article lays the empirical foundations for a new wave of doctrinal work on the procedural foundations and consequences of gender disparities. It also provides a methodology that can be extended to study litigation gender disparities in state courts, tribal courts, arbitrations, and administrative proceedings
Class of 1930
No full textShapiro, M. Rauch, L. Borden, H. Steinberg, B. Fox, J. Peselow, S. Friedman, M. Paris, F. Jaffe, L. M. Markhoff, A. Crisano, L. Schaeffer, S. Rubenstein, J. Schwartz, A. Steinberg, A. Sherbakoff, W. Weiss, T. Wilder, H. Kottler, L. I. Schlesinger, S. C. Kaplan, J. Orner, H. Goodman, J. Gang, M. L. Hecht, M. Moran, M. Koslovsky, F. Castellano, F. Schiff, S. Otis, J. Rosen, L. A. Kass, G. Kroll, H. Ottenstein, M. Solomon, S. Frank, P. Friedman, S. B. Zand, H. H. Gross, A. Hendler, M. Goldstein, M. Miller, R. Sahn, M. E. Stryker, A. Delpino, J. C. Stern, S. Cohen, J. Bloom, S. S. Borenstein, S. Slote, H. L. Fishman, S. Schwartzburg, J. H. Hendel, S. Solomon, A. L. Raffish, M. Solomon, A. Slatin, B. Kerner, A. Alderman, D. Rand, H. Turchin, S. Mcgowan, J. Kerr, L. Louis, S. Liebowitz, H. Orseck, I. Sciortino, J. Dorf, A. Wexler, S. D. Bricker, C. Perin, R. Shenghit, M. Savell, I. Schwartz, S. D. Greenberg, H. Mare, S. Starcke, C. Liberman, W. Heller, S. Kipnis, L. Paull, J. Simonoff, S. Wetmore, E. L. Bragin, H. Bennin, A. Luongo, A. Flasterstein, S. Rieder, A. Krasner, M. Feldman, M. Saltzman, A. Siegel, D. Porchevnick, A. Roshback, J. Soifer, L. Heinsohn, R. Colton, W. Eaton, M. Goldstein, R. Honig, H. Lager, O. Blatt, L. M. Lederman, S. Siegel, I. Lisinsky, H. Diamond, A. Launer, H. B. Herbert, R. Sugarman, D. N. Prensky, H. Berson, A. L. Swenson, W. Zipser, S. N. Traum, J. Kristan, P., Jr. Feldman, M. Beran, M. T. Wise, J. Kaplan, D. I. Koenig, B. Winokur, I. Maurauchick, J. G. Santangelo, M. P. Daniels, J. Ziering, N. M. Fishback, H. Tobias, M. Richardson, William Payson. Knox, John Clark. Easterday, John Howard. Surpless, Abner Curtis. Humble, Henry Wilbur. Gersternberg, Charles William. Gregory, Percival Howard. Rothschild, Jay Leo. Flouton, Allen Brownhttps://brooklynworks.brooklaw.edu/bls_classphotos/1011/thumbnail.jp