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The IRS’s Voluntary Disclosure Program: Need for Codification
Get PDFFor more than a century, the Internal Revenue Service (IRS) has had a voluntary disclosure program in place. Its purpose is to coax into tax compliance those wayward taxpayers who have committed criminal acts or have been remiss in fulfilling their civic tax-filing obligations. Historically, the voluntary disclosure program has had to strike a difficult balance between being attractive enough to entice tax scofflaws to participate and not being too attractive lest ordinary taxpayers feel that their compliance efforts were for naught.
A unique feature of the voluntary disclosure program is that it is entirely administrative in origin. The commissioner of the IRS formulated the program and exercises carte blanche as to its terms. The program’s administrative origins have allowed it to be nimble and responsive to the evolving tax landscape, but such malleability has sometimes dissuaded qualified taxpayers from participation because they fear that the program’s terms are stacked against them.
This Article advocates that Congress codify the voluntary disclosure program to bolster its appeal. By taking this legislative measure, the IRS and taxpayers would have to abide by a set of written ground rules. Doing so would curtail both real and perceived agency abuses and likely increase the number of derelict taxpayers choosing to participate
Immigration and Racial Justice: Enforcing the Borders of Blackness
Get PDFBlack immigrants are invisible at the intersection of their race and immigration status. Until recently, conversations on border security, unlawful immigration, and national security obscured racially motivated laws seeking to halt the blackening and browning of America. This Article engages with the impact of immigration enforcement at the intersection of anti-Black racism and interrogates how foundational immigration laws that exist outside constitutional norms have rendered Black immigrants invisible. At this intersection, Black immigrants experience a double bind where enforcement of immigration laws and the criminal legal system have a disparate impact resulting in disproportionate incarceration and deportation.
First, the Article examines how the foundational immigration laws—limiting citizenship to white males—and the failure of immigration enforcement to adhere to constitutional norms reinforce racial hierarchies. Part II of the Article examines how anti-Black racism and lack of constitutional protections within the immigration system lead to disproportionate immigration enforcement against Black immigrants. This part also details how the legislative reforms of 1996, coupled with different executive enforcement policies, have had a disproportionate impact on the deportation of Black immigrants. Third, in line with the goal of the Georgia State University Law Review’s 2021 Symposium—examining solutions—the Article examines the concept of transformational solidarity as a method to address the failure of immigration laws to adhere to constitutional norms, creating the need for reform. The intersections between how both the grassroots abolition movements within criminal and immigration law enforcement—“defunding the police” with “abolishing ICE”—provide a starting point for addressing the disproportionate impact of immigration laws and enforcement policies on Black immigrants
The Last Call for Civil Rights: Toward Economic Equality
Get PDFOver six decades have passed since the civil rights movement began in the mid-1950s, but American society has not yet fully realized the promise of the civil rights movement, which at its core embodies the protection and promotion of equity and dignity of all people. Despite the historic improvements that accord the legal protection of equal rights among different races, genders, and ethnic groups, significant economic disparity among racial and regional lines persists. The Reverend Martin Luther King, Jr. declared, “Now our struggle is for genuine equality, which means economic equality.” However, the pursuit of economic equality has not been successful. Growing racial and regional economic disparities create serious social, economic, and political problems in American society and pull America away from the ideals of the civil rights movement. Structural economic problems in the United States, such as persistent income and wealth disparities along racial lines and chronic poverty prevailing in many regions, have exacerbated the inequality that divides the country. This challenge requires a fundamental paradigm change. Racial and regional economic disparities can no longer be overcome solely by individual efforts and self-reliance. The federal government must address racial and regional economic disparities by facilitating economic development for minorities and economically depressed areas in close cooperation and coordination with state and local governments, as well as the private sector. Before America can fully meet the objectives of the civil rights movement, this country must achieve successful economic development that bridges racial and regional economic disparities
Has Federal Indian Law Finally Arrived at “The Far End of the Trail of Tears”?
Get PDFThis Article examines the United States Supreme Court’s July 9, 2020 decision in McGirt v. Oklahoma, which held that the historic boundaries of the Creek reservation remain intact, and argues that the decision may signal a sea change in the course of federal Indian law of the magnitude of Obergefell v. Hodges in the LGBT rights arena. The Article shows how the opinion lays a very strong foundation for a much-needed return to traditional federal Indian law principles, respectful treatment of tribal governments as a third sovereign in the American system, and an understanding of fairness from the perspective of tribes and Native individuals. The possible effects of Justice Barrett’s replacement of Justice Ginsburg on the Court’s future federal Indian law jurisprudence are also explored. The Article concludes with the hope that Justice Gorsuch’s majority opinion will foster predictability in the wildly unstable area of diminishment and disestablishment jurisprudence, as well as in other facets of federal Indian law
Tangibility as Technology
Get PDFProperty law has traditionally relied on tangible boundaries to delineate legal thinghood and to inform the bounds of in rem rights and duties. Unfortunately, property doctrines have fossilized around tangibility, causing fragmentation in the legal treatment of digital assets. In the United States, for example, cryptocurrencies and non-fungible tokens (NFTs) may simultaneously be classified as commodities, securities, currencies, assets, or not property at all, depending on the jurisdiction, domain, or specific asset in question. This fragmented system of overlapping legal treatments increases the information cost of using digital assets, decreases efficiency, and ultimately hinders future innovation. In this Article, I propose a unified and tech-neutral approach to legal thinghood, providing a theoretically coherent and robust way to increase property law’s resilience in adapting to future technologies. Specifically, I deconstruct the conceptual purpose of tangibility in traditional doctrines of legal thinghood, uncovering its role as a technology (i.e., a tool) in property law to delineate rights. From this insight, I derive a coherent doctrinal test for distinguishing between digital assets that fulfill all conceptual requisites to be legal things and assets that do not. By doing so, I conclude that the traditional ontological categories of property law, such as choses in possession, are sufficiently robust to incorporate new and evolving digital assets. This tech-neutral approach paves the way toward an elegant and efficient legal treatment of digital assets and digital resource management in the twenty-first century
Information Privacy in an Age of Invisible Shopper Tracking: Who Will Pay the Price for Stores of the Future?
Get PDFExplosive growth in technology has brought a unique opportunity to the doors of brick-and-mortar retail—a nearly $3.38 trillion industry struggling to regain relevance among modern, digitally enabled shoppers. Specifically, in-store analytics, or shopper tracking technologies, are allowing these retailers to better compete with online stores by tapping into consumer data unprecedented in the brick-and-mortar context. With these technologies, stores now have access to detailed metrics, like consumer dwell times, journeys, product engagement, product views, and demographic data such as age and gender, which can be used to optimize store operations and marketing and promotions.
Recent events, however, including a string of data breaches and the passage of strict privacy laws in Europe and California, have renewed efforts for broad information privacy reform that could have deleterious consequences for these technologies. This Note examines the current state of privacy law; two approaches to information privacy reform that appeared before the 116th Congress, namely consumer control and business accountability; and the potential impact of these two regulatory approaches on in-store analytics technologies. It concludes that properly balancing consumer privacy and business interests through regulation requires more than a one-size-fits-all federal band-aid. Instead, it proposes starting with targeted federal acts aimed at the bigger gaps and outliers in existing information privacy law, like brick-and-mortar technologies. Addressing in-store analytics, specifically, it recommends federal regulation focused on business-accountability and expanded FTC powers, and it outlines specific considerations for a targeted act
Creating Online Education Spaces to Support Equity, Inclusion, Belonging, and Wellbeing
No full textThe pivot to online education during the pandemic has led those who teach students at all levels to explore how to promote student engagement in online classes. While building and enhancing teacher capability with online teaching is important, given the social unrest and other political, social, and emotional challenges presented by the pandemic, perhaps especially in the law school context, expertise with shifting the teaching of legal doctrine to online modalities alone is not enough. Law teachers need to consider how they can bring an anti-racist and trauma-informed lens and a focus on wellbeing to their online pedagogy and create learning communities that are democratic, inclusive, and caring. While this article was inspired by recent events, its co-authors share a longstanding commitment to these ideas and strongly believe they are applicable across many contexts, including legal education. This article identifies approaches, strategies, and tools law teachers can use to promote equity, inclusion, belonging, and wellbeing for all learners in their classrooms, especially students from historically marginalized groups. It focuses on methods for creating community within classrooms in an online environment in ways that promote racial justice and support individual and collective wellbeing. Part I discusses the reasons the co-authors have chosen to prioritize this aspect of our work. Part II explores how we create an intentional learning community where everyone belongs, in large part through equitable design and through creating a welcoming space for learning. Part III highlights a number of additional ideas we hope will inspire readers to re-imagine their own courses with attention to the goals and aspirations of this article