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Reconsidering Realization-Based Accounting for Equity Compensation
Get PDFThe U.S. equity compensation landscape continues to evolve. Recent innovations have improved the linkage between pay and firm-specific performance, but have added complexity. Against that backdrop, this Article urges reconsideration of the accounting rules for equity pay. Under current rules, most equity pay awards are expensed based on grant date valuation with no updating for changes in value post grant. This Article advocates the adoption of a mark-to-market or realization-based approach under which the expense recorded for all equity pay awards would ultimately be trued to the value received by employees. Increasingly, equity pay awards are more analogous to commissions than to arm’s length investments, and the tighter link between pay and firm-specific performance suggests that including post-grant changes in equity pay award values in compensation expense tends to improve accuracy, not just add noise. In addition, increased complexity leads to greater ex ante valuation uncertainty and gaming opportunities, suggesting de-emphasizing reliance on ex ante measurement to the extent possible. Realization-based accounting also produces book/tax conformity for equity pay, which further combats gaming, and it levels the accounting playing field for equity instruments, minimizing accounting-induced distortions in pay design. The Article also argues that concerns that realization-based accounting will add an unacceptable level of uncertainty or volatility into compensation expense can be mitigated
Law, Social Welfare, and Net Neutrality
Get PDFNet neutrality generates wealth transfers from one type of internet content provider to another. In theory, these transfers might be socially desirable, and could be justified on the basis of informational externalities similar to those cited to justify fair use in copyright law. In practice, however, the conditions that justify fair use do not hold where net neutrality operates. Moreover, the internal subsidization required by net neutrality generates a regressive transfer. The welfare gains that might come from controlling anticompetitive abuse or government coercion through implementation of net neutrality can be achieved by alternative policies with less harmful consequences
Arbitration and Fine Dining: Two Faces of Efficiency
Get PDFA restaurant meal might turn into disappointment either when good food arrives late, or when prompt service delivers bad food. The chef cannot become preoccupied with any one aspect of fine dining to the exclusion of others. Likewise, arbitral proceedings implicate proportionality and balance among a multitude of factors which can make the experience good or bad. Several elements play key roles in evaluating any arbitration, namely: accuracy, fairness, cost, speed, and award enforceability. An inevitable tension exists among these goals. Decisions reached quickly and cheaply will do few favors if the award gets it wrong on the substantive merits. The prevailing party will find little satisfaction in a correct result that is refused recognition because the arbitrators denied due process to the losing side. A good arbitrator, like good chef, will seek balance and counterpoise. That which is excessive may become not only insignificant, but also counterproductive
Amicus Curaie, Submitted Susan Akram
Get PDFB Summary of Argument
7. Palestinian refugees fall under a legal regime that is distinct from all other refugees in the world.12 As such, they are covered by a series of special provisions that apply only to them and no other refugees. Their special status resulted from the decisions of the drafters of key international treaties to exclude Palestinian refugees from the mandate of the United Nations High Commissioner for Refugees (UNHCR) and the 1954 Convention on the Status of Stateless Persons, and to conditionally exclude them from the benefits of the 1951 Convention on the Status of Refugees. 13
8. Three main reasons were behind the decision of United Nations (UN) delegates who drafted the special regime for Palestinian refugees to create a special regime for them. First, in 1948 and 1949, prior to the drafting of the Conventions on the status of Refugees and Stateless People, the UN had already established two agencies specifically for the Palestinian refugees, the United Nations Conciliation Commission on Palestine (UNCCP) and the United Nations Relief and Works Agency for Palestine Refugees (UNRWA), authorized to provide international protection and assistance to the refugees respectively.14 Because two specialized agencies had already been established with exclusive mandates towards this refugee population, the UN delegates deemed it duplicative and unnecessary for UNHCR to also have responsibility for the Palestinian refugees.15
9. Second, the UN delegates recognized that, unlike all other refugees who were under consideration at the time of drafting the UNH CR Statute, the Refugee and Stateless Persons Conventions, the Palestinians had become refugees because of action taken by the UN - the decision to partition Palestine through UNGA Res. 181, which led to the creation of Israel and the resulting flight of hundreds of thousands of Palestinian refugees.16 Hence, the UN had special responsibility to ensure a particular protection regime was in place to implement the durable solutions that the UN had already incorporated in the first resolutions it had passed concerning the Palestinian refugees. As the delegates recorded in the travaux preparatoires of the Refugee Convention, the Palestinian refugees should not be subsumed in a regime designed for all other refugees, as the UN had particular responsibility for them.17
10. Third, the UN Resolutions that established the UNCCP and UNRWA had set up a specific formulation required to reach a durable solution for these refugees - return to their homes and lands, restitution of their properties, and compensation for their losses - and it was the UN that was responsible for ensuring implementation of this formula for the entire population of Palestinians.18 Until that durable solution formula was implemented, Palestinians as an entire category were to remain the responsibility of the UN as a special category of \u27refugees.\u27
11. It is only with this historical context in mind that the \u27Palestinian clauses\u27 of Article 1D in the Refugee Convention, Article 1 in the Convention on Stateless Persons, and Paragraph 7(c) of the UNHCR Statute can be understood. This context also clarifies the bifurcated mandate of UNRWA/ UNCCP (and today, UNHCR), and its consequences for the Palestinian refugee at issue in this case.19
12. It is the opinion of this amicus that the European Court of Justice (ECJ), in El Kott v. B.A.H, has articulated an incorrect interpretation of Article 1D. A historically accurate analysis of the drafting of Art. 1D that takes into account treaty interpretive rules compels a finding that is a Palestinian refugee who cannot be returned to Gaza or to any of the countries of his previous residence without violation of Sweden\u27s obligations under international law
A VATCoin Proposal Following on The 2017 EU VAT Proposals - MTIC, VATCoin, and BLOCKCHAIN
Get PDFThe following proposal for an EU VATCoin was presented at the Digital Tax Transformations Conference, December 18 & 19, 2017 in Vienna, Austria at WU Global Tax Policy Center (WU GTPC) at the Institute for Austrian and International Tax Law of Vienna University of Business and Economics.
The EU Commission has proposed “far-reaching reforms” to solve some of the fraud in the EU VAT. It hopes to capture €50 billion lost annually to MTIC fraud in goods. It hopes to do this without addressing tradable services, a MTIC mutation which by all accounts is running strong.
Fortunately, the Commission is open to technological solutions, and realizes that trust is the heart of the matter. Over the years, a large number of very good proposals dealing with MTIC have been rejected because one or more Member States do not trust the solution.
However, trust leads directly to blockchain. This advance in technology is not called the “Trust Machine” for nothing. Well-designed code is inherently trustworthy. In the age of cyberspace – code (computer code) is the new regulator. Code regulates better than laws written in the legal texts.
We present with this paper a workable solution to some problems in the Commission’s “far-reaching reforms.” It is a technology-intensive solution to long-troubling tax law problem. It is a solution that is similar to the VATCoin solution we have also presented to the GCC as they prepared to adopt a VAT. It follows some of the GCC insights in terms of harnessing the blockchain to share cross-border trade information. It relies in part on technology observations in the GCC Framework Agreement, but it goes further than any of the GCC sources by specifying the mechanisms through which VATCoins will work within the blockchain.
This paper is not critical of the “missing pieces” in the EU Commission’s “far-reaching reforms” (largely the failure to deal with tradable services). It is fairly easy to see how services can be added-on to the VATCoin approach we have taken, but the Commission is not anxious to do this (yet). Fraudsters, particularly when they have adopted VAT fraud as their means to raise funds for terrorist organizations, are not deterred by half-measures. The Commission is very aware of the people who are on the other side of this tax fraud fight. It should be anxious to close the circle.
We believe that blockchain will align the government’s interest in improving revenue yields, simplifying compliance for businesses, and opening the VAT to verified observation. We know more than enough about how blockchain works from all the efforts expended in this field since Satoshi Nakamoto’s Bitcoins first appeared in 2008. We also understand how smart contracts (enforceable digital agreements) can be associated with the blockchain after Vitalik Buterin showed us how to do it with Ethereum in 2013. We can also craft a fully public distributed ledger if we adopt Silvio Micali’s Algorand as a consensus mechanism. And if the Red Belly Blockchain lives up to its early reports, we can bind 660,000 transactions per second into a blockchain, and out-perform VISA by a factor of 10.
It is clear to us that VATCoin’s time has come. As Larry Lessig observed, in the Age of Cyberspace “code is law.” We believe the time has come for the EU Commission to look at encoding the VAT in a blockchain and solve MTIC once and for all with VATCoin
Review of What\u27s Wrong with Copying? by Abraham Drassinower
Get PDFThere are several radical aspects of Abraham Drassinower’s book WHAT’S WRONG WITH COPYING? One is that he shoves to the side the question of copyright incentives and the economic theory of intellectual property law, both long-standing starting points for copyright theory and doctrine. Drassinower makes no intellectual apologies for this sidelining and justifies it by the second radical aspect of his book: he claims to be exploring copyright law on its own terms, not on terms from outside copyright (economics or behavioral incentives) but from internal to copyright law as written and developed since the Statute of Anne.1 This he does in impressive fashion, as I will briefly describe below. It is refreshing and a welcome intellectual and aesthetic exercise to work so closely with phrases and arguments of famous copyright cases, as if with one’s hands and a pile of clay. As a reader one comes to a new understanding and appreciation for what the cases say and how they can be freshly understood as a way forward in our “copyright wars” debating an increasing copyright scope and a shrinking public domain.2 As Drassinower says in his introduction, he sets out to “demonstrate that the assumption that copying is wrongful is a radically mistaken way to approach copyright law.”3 And he writes on the first page of the Preface that “[t]he point is to retrieve from within copyright law a neglected appreciation of the copiousness of copying, not as the agitations of wealth-maximization, but as the reverberations of thinking as a shared activity.”4 So while this book engages the on-going debate over the proper scope of copyright – a debate critical for democracy, dignity and peace (could there be any more significant triad?) – the terms of Drassinower’s engagement are original and therefore deeply welcome
The Unnecessary and Unfortunate Focus on Animus, Base Desire to Harm, and Bigotry in Amalyzing Opposition to Gay and Lesbian Rights
No full textA Research Agenda for the History of Property Law in Europe, Inspired by and Dedicated to Marc Poirier
Get PDFProposes the following research agenda: (a) understanding the relation between property and long-term economic change by focusing on the relation between property law and what historians call social property relations; (b) understanding property concepts and ideas in the context of the larger ideological and philosophical ideas that shaped the immediate world of jurists and property lawyers; (c) looking beyond the single, contingent episodes of the history of property law and identifying longterm patterns and regularities in the way jurists conceptualized property; and (d) understanding European property culture in its many entanglements with the non-European world
Comment les arbitres se décident-ils?
No full textUn compte rendu fidèle du processus par lequel les arbitres se décident exige une étude du rôle que jouent plusieurs corps de règles. Pas seulement celui des traités, de la législation et de la jurisprudence nationales, du droit dur (hard law) qui s’applique au règlement au fond du différend. Mais aussi celui du droit souple (soft law) des directives élaborées par les diverses parties prenantes de la communauté de l’arbitrage en matière de procédure, en particulier d’interrogation de témoins ou de communication de pièces. L’interaction des deux corps de droit produit des scénarios intéressants, qui éclairent le processus décisionnel des arbitres et la manière dont ces règles facilitent ou non la fidélité des arbitres aux attentes initiales des parties
Take the Fifth... Please!: The Original Insignificance of the Fifth Amendment\u27s Due Process of Law Clause
Get PDFThe Fifth Amendment’s Due Process of Law Clause adds nothing to the Constitution’s original meaning. Every principle for limiting federal executive, judicial, and even legislative powers that can plausibly be attributed to the idea of “due process of law” – from the principle of legality forbidding executive or judicial action in the absence of law to the requirement of notice before valid judicial judgments to a limitation on arbitrary governmental action that today goes under the heading of “substantive due process” – is already contained in the text and structure of the Constitution of 1788. The Fifth Amendment Due Process of Law Clause confirms those principles but does not create them. Accordingly, originalist attention should be focused on the Constitution itself, not on the “exclamation point” added to it in 1791.
This article defends those claims and also briefly explores why and how modern doctrine has moved from this substantively-oriented account of limitations on governmental powers to a focus on executive and judicial procedures. That shift may result in some measure from doctrine under the Fourteenth Amendment’s Due Process of Law Clause. The limitations on federal power built into the Constitution of 1788 obviously do not apply to state governments, so attributing the Fifth Amendment’s meaning to the Fourteenth Amendment makes little sense (though if that really is what the original meaning of the Fourteenth Amendment does, that is just life). A proceduralist account of due process of law makes some sense under the Fourteenth Amendment, but it is a large mistake to read that proceduralist account back into the Fifth Amendment.
The bottom lines are that the Fifth Amendment’s Due Process of Law Clause (1) is much more about substance than about procedure and (2) is basically irrelevant to the Constitution’s original meaning