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Reconsidering the Tax Treaty
Get PDFFor nearly one hundred years, the international tax regime steadfastly pursued a single nemesis, double taxation. States armed themselves against this common enemy with their weapon of choice, the double tax treaty. Nearly uniform in language and approach, the treaties proliferated to more than three thousand in number,1 resulting in a secure arrangement between and among states and taxpayers.
Yet in recent years, states have had to expand the war to multiple fronts in the face of globalization, technological changes, evolving taxpayer abuses, and shifts in both domestic and international political pressures. For instance, a growing recognition that the interests of a state and its taxpayers can and do diverge has fueled the Base Erosion and Profit Shifting (BEPS) containment effort led by the Organisation for Economic Co-operation and Development (OECD), culminating in an unprecedented multilateral instrument. Acknowledging that tax havens lack some combination of the resources and the inclination to forestall tax evasion, the U.S. Congress enacted the Foreign Account Tax Compliance Act to compel financial institutions in foreign jurisdictions to step into the breach, 2 resulting in more than one hundred intergovernmental agreements implementing new reporting regimes. 3 The European Commission is currently investigating whether favorable advance transfer pricing rulings granted to corporate taxpayers by certain European countries violate the European Union bar on state aid that distorts competition.4 These state aid cases have created tension among the various jurisdictions that have a claim in taxing profits that have been shifted to tax havens and have the potential to unsettle dispute resolution procedures under bilateral tax treaties
The Trauma of the Routine: Lessons on Cultural Trauma from the Emmett Till Verdict
Get PDFCultural traumas are socially mediated processes that occur when groups endure horrific events that forever change their consciousness and identity. According to cultural sociologists, these traumas arise out of shocks to the routine or the taken for granted. Understanding such traumas is critical for developing solutions that can address group suffering. Using the African American community’s response to the not guilty verdict in the Emmett Till murder trial as a case study, this article extends cultural trauma theory by explicating how cultural traumas can arise not only when routines are disrupted but also when they are maintained and reaffirmed in a public or official manner. In so doing, this article analyzes the interplay between the history or accumulation of the “routine” harm at issue, the shocking or unusual occurrences that frequently precede such “routine” harms, the harm itself, and public discourse about such harm’s meaning in cultivating a cultural trauma narrative
Hon. Solomon Oliver Jr.
No full textAsk any individual what word comes to mind upon hearing the name Solomon, and he or she is certain to declare wisdom. Inquire of any persons-lawyers and non-lawyers alike-what word comes to mind upon hearing the name Solomon Oliver Jr., and one is also certain to hear the term wisdom, plus a whole other set of adjectives and nouns that describe the current chief judge of the U.S. District Court for the Northern District of Ohio in exceptionally glowing terms. A small sampling of these praising and admiring descriptors include words such as impartial, fair, respectful, highly intelligent, good-hearted, hard-working, guardian of the Constitution, excellent role model, the consummate mentor, a trailblazer, a thoughtful but no-nonsense judge, and an inspirational figure
An International Legal Framework to Address Antimicrobial Resistance
Get PDFAntimicrobial resistance is a growing threat to global health. Currently it accounts for approximately 700,000 deaths annually, but is predicted to cause as many as 10,000,000 deaths by 2050 if nothing is done to address it. To effectively deal with this problem three areas must be addressed simultaneously: access, conservation, and innovation. However, solving issues of access, conservation and innovation at the same time requires new coordination and financing mechanisms, some of which must be organized globally. This bulletin outlines the possible role that a binding international legal framework can play in the fight against antimicrobial resistance
Law and Project Finance
Get PDFWe investigate Project Finance as a private response to inefficiencies created by weak legal protection of outside investors. We offer a new illustration that law matters by demonstrating that for large investment projects, Project Finance provides a contractual and organizational substitute for investor protection laws. Project Finance accomplishes this by making cash flows verifiable through two mechanisms: (i) contractual arrangements made possible by structuring the project within a single, discrete entity legally separate from the sponsor; and (ii) private enforcement of these contracts through a network of project accounts that ensures lender control of project cash flows. Comparing bank loans for Project Finance with regular corporate loans for large investments, we show that Project Finance is more likely in countries with weaker laws against insider stealing and weaker creditor rights in bankruptcy. We identify the predicted effects using difference-in-difference and triple-difference tests that exploit exogenous country-level legal changes and inter-industry differences in free cash flow and tangibility of assets
Bullying and Opportunism in Trademark and Right-of-Publicity Law
Get PDFLawyers, scholars, and even Congress have lately expressed concern about so-called “trademark bullies” — trademark holders that assert tenuous legal claims against vulnerable defendants, who often capitulate rather than incurring the expense and uncertainty of litigation. At the same time, we’ve witnessed right-of-publicity claims for acts that never would have raised an eyebrow a few decades ago. Complaints about bullying and overreaching are largely anecdotal rather than empirical, so it’s hard to gauge the extent of the behavior and to measure its costs. But the fact that it has attracted so much attention suggests a perception, at least, that some rights-holders are asserting unreasonable claims and chilling legitimate conduct.
This paper contends that certain structural and doctrinal features of trademark and right-of-publicity law enable and, in some cases, reward aggressive claiming. Although the two areas of law have different roots and distinct doctrinal formulations, they share some common features that may fuel grabby behavior by rights-holders. Given these structural and doctrinal features, it’s no wonder that rights-holders test the limits of their trademark and publicity rights in lawsuits, PTO practice, and cease-and-desist campaigns. Contrary to the oft-stated trope of trademark holders, they do not have to take aggressive positions against borderline conduct to avoid loss of their trademark rights. But they can obtain benefits from taking forceful positions, both in the immediate dispute and more generally. Whether we view them as bullies, opportunists, or rational profit-maximizers, rights-holders are responding to incentives and opportunities created by judges making substantive law.
This is not to condone or excuse those who assert untenable claims. The reality, however, is that few of the claims that critics cite as trademark bullying are untenable, under today’s permissive standards for infringement and dilution. And the same goes for right-of-publicity claims, even in the context of expressive works. While we might hope for voluntary restraint by rights-holders, the only way to ensure such restraint is to clarify boundaries and alter incentives. Commentators have suggested a variety of tools for shifting these incentives, and this Essay brainstorms about some more
The Right to Silence v. The Fifth Amendment
Get PDFThis paper concerns a well-known, but badly misunderstood, constitutional right. The Fifth Amendment to the Constitution guarantees, inter alia, that no person “shall be compelled in any criminal case to be a witness against himself.” For the non-lawyer, the Fifth Amendment protects an individual’s right to silence. Many Americans believe that the Constitution protects their right to remain silent when questioned by police officers or governmental officials. Three rulings from the Supreme Court over the past twelve years, Chavez v. Martinez (2003), Berghuis v. Thomkpins (2010) and Salinas v. Texas (2013), however, demonstrate that the “right to remain silent” that most Americans think they possess does not exist.
This article focuses on Salinas, where Genoveo Salinas agrees to speak with police about a double-murder. Because he is not under arrest and came to the police station voluntarily, Salinas is not given Miranda warnings. Salinas answers the officers’ questions, but remains silent when asked whether a ballistics test of the shotgun obtained from his home would match the shell casings found at the murder scene. After a few moments of silence, Salinas answers other questions. At trial, the prosecutor is allowed to use Salinas’s silence as substantive evidence of his guilt, and the jury convicts him of murder. The Court ruled that using silence in these circumstances as evidence of guilt did not violate the Fifth Amendment.
The result and reasoning of Salinas raises some perplexing questions about the nature and scope of the Fifth Amendment and underscores the Court’s conflicting interpretations of the Fifth Amendment. A plurality of the Court ruled that Salinas’ constitutional “claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question” about the shotgun. The plurality explained that Salinas could have easily asserted that he was not answering the question “on Fifth Amendment grounds. Because he failed to do so, the prosecution’s use of his noncustodial silence did not violate the Fifth Amendment.” Implicit in this reasoning is that Salinas enjoyed Fifth Amendment protection during his interaction with the police. The Court has offered two different views of the Fifth Amendment. Under the “right to silence” interpretation, when government officials subject an individual to official coercion or its equivalent, the individual holds a right to remain silent, and the government cannot penalize the exercise of that right. The Salinas plurality found that Salinas could not rely on this principle because “his interview with police was voluntary.” But this conclusion raises the question of why the Fifth Amendment is implicated during a voluntary police interrogation. To assume Salinas enjoyed Fifth Amendment protection in this situation contradicts the Court’s “textual” interpretation of the Fifth Amendment, which establishes that the “sole concern of the Fifth Amendment . . . is governmental coercion.” If the focus of the privilege is on government compulsion, it would seem that the Fifth Amendment has no application to a voluntary police interview. Without explaining why the Fifth Amendment applies to voluntary police questioning, the plurality finds that Salinas had not properly asserted his rights. This conclusion, however, penalizes members of the public who have understandably, but erroneously, relied on the Court’s “right to silence” interpretation of the Fifth Amendment, which supposedly grants a right to remain silent for persons confronted with incriminating police questioning.
The reasoning of the Salinas plurality raises another question about the nature and scope of the Fifth Amendment. The Fifth Amendment is stated in absolute terms; the government cannot require a person to be a witness against himself in any criminal case. Examining the text, it appears that everyone enjoys the same Fifth Amendment protection. Unlike other provisions of the Bill of Rights which often require the Court to balance an individual’s constitutional interest against the government’s interests, the text of the Fifth Amendment leaves no room for judicial balancing of competing interests. Yet, the Salinas plurality contrasts the Fifth Amendment rights of an arrestee with the Fifth Amendment rights of someone who voluntarily comes to the police station. The arrestee enjoys a right to silence, but the citizen who freely appears at the police station does not. Relying on the text of the amendment, the Salinas plurality explains that the public’s understanding of their right to silence is mistaken; according to the plurality, the amendment “does not establish an unqualified ‘right to remain silent.’” But if the Fifth Amendment does not afford an absolute right to remain silent for someone like Salinas, why would an express invocation of the Fifth Amendment matter? Invoking the words of the amendment, without more, would not change the voluntary nature of the interview. While the plurality opinion implies that an express invocation would make a constitutional difference, it never explains why.
Finally, even assuming that an explicit invocation of the Fifth Amendment provides more protection than merely remaining silent, if police are permitted to tell someone in Salinas’ position that his silence can be used against him in a future prosecution, as the Court said they may do, why would a person bother invoking the Fifth Amendment after being told by police that silence can be used against him? After all, most laymen, and many lawyers, believe the right to silence is just another way of referring to the Fifth Amendment.
This article will show that the right to silence and the Fifth Amendment are not the same. Indeed, the result and reasoning of Salinas demonstrate that the Fifth Amendment does not afford an individual, who has neither been indicted, nor arrested, nor temporarily detained by police, a right to remain silent in the face of police interrogation
Five Unexpected Lessons from the Ashley Madison Breach
No full textOn December 14, 2016, the Federal Trade Commission settled a complaint with the company running the adult finder site Ashley Madison over the 2015 data breach that exposed the personal data of more than 36 million users and highlighted the site’s unfair and deceptive practices.
This complaint and settlement is important, but not for the obvious reasons. Yes, the breach had an outsized reach, much like the Target and Home Depot breaches preceding it. Yes, the breach involved poor security practices and deceptive promises about the site’s privacy protections. The Ashley Madison complaint follows a long line of actions brought by the FTC to combat unfair and deceptive data protection practices. The site’s exploitation of users’ desperation, vulnerability, and desire for secrecy is exactly the sort of abuse of power the Federal Trade Commission was created to mitigate.
But there are five key lessons that should not be missed in discussions about the agency’s settlement of the case. This complaint and settlement are more than just business as usual—they reflect a modern and sustainable way to think about and enforce our privacy in the coming years
GCC VAT: The Intra-Gulf Trade Problem
Get PDFIt seems reasonably clear that by January 1, 2018 events will be set in motion for the adoption of a community-wide 5% value added tax (VAT) in the six Member States of the Gulf Cooperation Council (GCC).
The GCC’s Framework VAT document is expected to be published by the end of October 2016. One of the clearest, consistently placed observations is that the Arabian VATs will be destination-based and modeled on a European credit-invoice design. Intra-Gulf business-to-business (B2B) transactions will be effectively zero-rated by the supplier, and the buyer’s VAT will be directed to the destination jurisdiction. It is not clear if the mechanism directing this deposit to the destination jurisdiction will be through customs agents, a buyer’s reverse charge procedure as in the EU, or a seller’s remission of VAT directly (or indirectly) to the foreign treasury through a one-stop-shop. The lack of clarity on this final element does not detract from the “true ring” of the other observations.
This paper drills down to the next level. How (exactly) will (or should) the Arabian VATs intra-Gulf zero-rating in goods be implemented? Will the same mechanism be used for intra-Gulf and extra-Gulf tradable services? There is neither public commentary, nor private statements on the issues raised by this implementation question, but the warning flags are up. The procedures adopted by the EU to implement its zero rating/reverse charge mechanism have been the core structural problem underpinning the EU’s struggle with MTIC and MTEC frauds. Will the GCC follow suit, or have they found another/better way? There are indications that the GCC may just have found a better way forward, and it will be implemented.
There are two traditional approaches to crafting statute that will put in place a zero rate regime for cross-border transactions within a community – (a) the customs-controlled approach, and (b) two accounting-controlled approaches (a reverse charge or a one-stop-shop). Currently there is (c) a technology-controlled (real-time) implementation for each of these regimes. This paper contends that the Arabian VATs will benefit from history, and they are ideally positioned to show the VAT community how to use real-time technology to solve some of its most difficult cross-border trade problems. A common example will assist throughout this paper
Zappers - Technological Tax Fraud in New Hampshire
Get PDFNo other State is as vulnerable to Zappers as is the State of New Hampshire. Zappers and related software programming, Phantom-ware, facilitate an old tax fraud – skimming cash receipts. In this instance skimming is performed with modern electronic cash registers (ECRs). Zappers are a global revenue problem, but to the best of this author’s knowledge they have not been uncovered in New Hampshire. Seen from a global perspective however, it seems unlikely that they are not here.
New Hampshire’s fiscal vulnerability to Zappers comes from its heavy reliance on precisely the industry segment that has been found to be the “hot bed” of this fraud – the restaurant industry. In the most recent fiscal year the Meals and Room Tax (M&RT) trailed only the Business Profits Tax (BPT) in revenue yield (317,439 million). Taxes on meals approximate 70% of the M&RT. As a result, when tax fraud arises in this industry segment it is a significant concern