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The Digital Advertising Tax: An Overstep by State Taxing Jurisdictions
Get PDFIn 2021, the Maryland Senate voted to override the governor’s veto to pass House Bill 732, marking the enactment of the first digital advertising tax in the United States. The tax imitated existing digital services taxes that have become popular internationally. Recognizing the need for a global solution, the OECD and the G20 formed the Inclusive Framework to ensure that countries receive their fair share of taxes without subjecting businesses to double taxation. Domestically, however, no such resolution has been reached, and several other states, inspired by Maryland’s initiative, followed suit by introducing their own versions of a digital advertising tax. This tax is levied based on the proportion of a business’s gross revenue derived from digital advertising, which Maryland defines as advertisement services delivered through a digital interface. Since the enactment of the tax, the Comptroller of Maryland has faced legal challenges, such as in Maryland state court, where several trade associations—including the United States Chamber of Commerce—filed suit, and in federal court, where Comcast entities did the same. This Note argues that laws like Maryland’s, attempting to impose digital advertising taxes, go beyond a state’s taxing authority and are unconstitutional under both the Supremacy Clause and the Commerce Clause
Drowning Unicorns: The Case Against More Disclosure in Private Markets
Get PDFThis Note traces the economic and legal factors that led to the proliferation of unicorn companies—private, venture-backed startups valued over one billion dollars—over the past decade and argues that unicorn companies should be subject to fewer security disclosures. A lighter disclosure regime fosters greater private-market illiquidity, which, in turn, better aligns an investor’s profit motive with prudential corporate management. Because they cannot flee at the first sign of trouble, shareholders are incentivized to play a more active role in overseeing management and eschew risky decisions that threaten the well-being of a company to avoid losing their investments. Given the dynamic between market illiquidity and increased shareholder oversight, this Note advocates for the adoption of a regulatory stance that disfavors onerous disclosure requirements on private companies but prefers startup companies to go public earlier in their lifecycles. To pressure companies to IPO sooner, the shareholders of record threshold in Section 12(g) of the Securities Exchange Act should be restored to its pre-JOBS Act level of 500 from its current level of 2000
Gender Pay Disparity, the COVID-19 Pandemic, and the Need for Reform
Get PDFThe COVID-19 pandemic has exposed and deepened systemic inequities in the United States. One such inequity is gender discrimination in the labor market, evidenced by pay disparity—the difference between women’s and men’s wages. During the pandemic, women left the workforce at double the rate of men. This employment disruption will negatively affect women’s wages upon their return, as well as their lifetime earnings, further widening the pay gap. Pay disparity exploits more than half of the population, decreases gross national product, and stymies economic growth. This article addresses the reasons why existing legislation has failed to close the pay gap. Relying on the framework of successful Icelandic legislation, which has helped narrow gender pay disparities in Iceland, this article proposes federal legislative reform measures designed to shift the burden of proving wage discrimination from the employee to the employer. Instituting these changes would diminish the effect of implicit gender biases and, correspondingly, reduce pay disparity
Administrative Deference and the Social Security Administration: Survey and Analysis
Get PDFThe purpose of this article is to examine the role of administrative deference when decisions of the Social Security Administration are reviewed by federal courts. The concept of administrative deference to administrative agencies in federal courts goes back to the 1930’s during the rise of the New Deal—with the high-water mark reached by the Supreme Court in Chevron v. National Resources Defense Council. Since this point, there has been a growing chorus calling to re-examine or outright roll back the deference owed to these agencies when their decisions are reviewed in federal court. Prior to rewriting the standards, this article seeks to fill in the gaps and show where administrative deference matters when decisions of the Social Security Administration are reviewed and in what circumstances
Mezzanine Real Estate Loan Foreclosures: What is Commercially Reasonable During an Emergency?
Get PDFOwners of commercial real estate frequently use mezzanine debt as an additional source of financing. In contrast to mortgage loans, which are secured by real property, the collateral for mezzanine real estate loans is the mezzanine borrower’s ownership interest in the entity that owns the property. This ownership interest is considered personal property, and thus foreclosure and disposition of the collateral is governed by the Uniform Commercial Code, which requires foreclosure sales to be “commercially reasonable.” During COVID-19, mortgage loan foreclosures were stayed in New York pursuant to executive order. Despite the fact that, in a practical sense, mezzanine loan foreclosures achieve substantially the same effect as mortgage loan foreclosures (in both situations, the lender can either take over the property or sell the collateral to satisfy the debt), the executive orders did not, on their face, restrict mezzanine foreclosures. As mezzanine creditors initiated foreclosure proceedings during the pandemic, and their defaulted debtors sought preliminary injunctions against foreclosure sales, courts were faced with two crucial questions. First, did the executive order prohibit mezzanine loan foreclosures? If not, how can a foreclosing lender conduct a commercially reasonable foreclosure sale during a pandemic? This Note proposes that while a moratorium on commercial mortgage loan foreclosures exists to protect borrowers that can demonstrate financial hardship due to the applicable emergency, a parallel moratorium should also protect mezzanine debtors facing the same financial hardships. If the mezzanine borrower cannot demonstrate that it has defaulted on its loan obligations because of the emergency, then its lender should be free to commence foreclosure proceedings. In such a case, courts should generally apply well-settled precedent to determine if a preliminary injunction is appropriate but must take the existing emergency into account when determining whether a proposed foreclosure sale is commercially reasonable
PROTECTING THE ‘UNWANTED’: HOW AND WHY WE SHOULD DEFEND FORMER GANG MEMBERS IN THEIR PURSUIT OF ASYLUM
Get PDFThis Note discusses the flaws in the tripartite analysis to determine whether an asylum seeker satisfies the protected ground of “membership in a ‘particular social group’” (“PSG”). An applicant seeking a PSG determination must prove: (1) “immutability,” (2) “social distinction,” and (3) “particularity.” This Note argues that when PSG asylum claims are denied and appealed to the Board of Immigration Appeals (“BIA”), the BIA has incoherently tangled what is actually required in order to compel an affirmative PSG determination. One group of asylum seekers that has been significantly disadvantaged by this tripartite test is former gang members. This Note argues that when applying the BIA’s PSG requirements to former gang members seeking asylum protection, these requirements have been unnecessarily complicated and inconsistent. Moreover, the concepts of national identity and public sentiment about who “deserves” a pathway to citizenship have pushed the United States further from its obligations to asylum seekers. This Note proposes a return to the stand-alone standard of “immutability” from Matter of Acosta in order to provide reviewing courts, immigration judges, asylum officers, and applicants with a precise, predictable, and well-reasoned assessment of asylum claims made by former gang members
Is Investment Arbitration an Effective Alternative to Court Litigation? Towards a Smart Mix of Litigation and Arbitration in Resolving Investment Disputes
Get PDFThis article analyzes litigation and arbitration as commonly used methods for dispute resolution, more particularly between foreign investors and host states. It compares investor-state dispute settlement (ISDS) via investor-state arbitration with dispute resolution via domestic courts in the host state. The article adopts a goal-based approach for assessing the effectiveness of international adjudication and analyzes the extent to which the current ISDS system is aligned with its predetermined goals. The article starts by identifying four goals of ISDS: 1) fair and efficient dispute resolution, 2) norm compliance, 3) facilitating the objectives of the investment law regime, and 4) legitimizing the investment treaty regime. The identification process is followed by an examination of the extent to which ISA in its current form is able to serve these goals. In this regard, the paper examines systematically the traditional theoretical assumptions underlying the goals of ISDS as well as the assumptions on the basis of which ISA is often advanced to reach those particular goals. For every separate topic, a reality check is performed to verify the extent to which ISA is able to reach the expressed goals in practice. The analysis of each of the four goals concludes with a summary where the strengths and weaknesses of ISA are compared to the functioning of domestic courts. Finally, the article comes to nuanced conclusions pointing at the complicated reality concerning the dynamics between investment tribunals and domestic courts, arguing that investment arbitration does have its unique advantages over domestic courts in advancing the goals of ISDS, but that for some aspects (such as awarding primary remedies) domestic courts may have particular advantages as well. It is for this reason that this article argues for a refined smart mix of court litigation and investment arbitration as an updated form of ISDS, allowing for example foreign investors to proceed to investment arbitration should court proceedings fail to resolve investment disputes. The unique and innovative character of the paper therefore consists of taking a different approach than the traditional one where investment arbitration and court litigation are often opposed. The article argues in favor of a smart mix of both systems by relying on a goal-based approach focusing on which smart mix of investment arbitration and court litigation could constitute an ideal institutional choice to meet the expected goals of ISDS
Embracing the End: A Comparative Analysis of Medical Aid in Dying in Canada and the United States
Get PDFSince the late nineteenth century, debate has unfolded over the use of euthanasia and physician-assisted death to alleviate the suffering of individuals with medical illnesses. The controversy surrounding the issue persists and its implications are significant. While most countries prohibit Aid in Dying (AID), legalization of the practice has expanded globally in recent years. Canada and the United States (US) are two such jurisdictions that have expanded access to AID. Canada has federally legalized the practice, which the country refers to as Medical Aid in Dying (MAID), and in 2021, the country expanded the eligibility criteria for individuals seeking access MAID. Today, an individual in Canada is eligible for MAID even if a natural death is not “reasonably foreseeable.” In contrast, the US prohibits the practice on the federal level but allows states to legalize it as they wish. While the list of states allowing the practice has grown, currently, only eleven US jurisdictions allow some form of AID. This Note analyzes the current AID legal regime in the US and Canada and compares the different approaches that each country has taken. It then argues that the US should borrow elements from the Canadian model by expanding access to AID services on the federal level, allowing federal funding to be used for AID services in states that have legalized the practice, and standardizing reporting requirements
