University of California Hastings College of the Law
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Tax Enforcement by the Private Sector: Deputizing Tax Insurers
No full textThe IRS is outgunned when trying to ensure compliance by large corporations and other sophisticated taxpayers. The private sector can help. Private sector actors, such as financial institutions, employers, and whistleblowers, have been valuable allies in the IRS’s efforts to improve compliance and enforcement. This Article argues for using another, largely overlooked, private sector party—tax insurers—to expand the IRS’s enforcement abilities. Tax insurers insure sophisticated taxpayers’ uncertain tax positions (e.g., the tax-free treatment of a corporate spinoff or tax credits critical to a renewable energy project). For a premium, a tax insurer agrees to pay any additional taxes owed with interest and penalties (up to the policy limit) if an insured tax position is successfully challenged by a tax authority. The tax insurance industry has grown dramatically since the mid-2010s, but scholars and policymakers pay little attention to its enforcement-enhancing potential. This is a mistake because insurers have informational, expertise, and capacity advantages over the IRS, because of the industry’s recent explosive growth, and because more robust enforcement is needed among precisely those taxpayers served by tax insurers. This Article proposes a novel regime in which tax insurers that voluntarily commit to insuring only strong tax positions would be effectively deputized as private sector tax enforcers. The IRS would treat any positions insured by them as likely compliant, having been “sustained” in a private “audit.” In theory, with the right combination of sticks and carrots, private sector tax enforcers could be incentivized to live up to their commitment to “sustain” only strong positions, and taxpayers could be incentivized to pursue “audits” by private sector tax enforcers that live up to those commitments. Given these mutually reinforcing incentives, the IRS could rely on those private sector “audit” determinations and reallocate enforcement resources toward taxpayers and tax positions more likely to be noncompliant. If the potential concerns presented by this proposal can be overcome (a task that might prove challenging), the proposal could harness a growing private sector industry for the public good
Proactive International Law
No full textThis Article challenges the centuries-old reactive and past-oriented approach of international law. It suggests that while the reactive paradigm has facilitated practical solutions to the concrete problems faced by the international community, this paradigm has also led international law to become backward-looking and short-sighted, thereby hindering the discipline from acting in anticipation of long-term problems and developments.
Against this backdrop, this Article calls for a conceptual shift. It argues that the time has come to couple international law’s traditional reactive paradigm with a more proactive, forward-looking approach that is geared toward the future, with a view to preventing risks and realizing opportunities well in advance. Such a shift is particularly critical given that many of the global challenges on the horizon—such as artificial intelligence, synthetic biology, environmental degradation, demographic transformations, or outer space commercialization—are more complex and diffuse than those previously encountered. Moreover, these challenges present themselves in an accelerated global environment where the rapid pace of social and technological change leaves little room for maneuvering when action is due.
This Article begins by recounting the reactive record of international law while illustrating the prevalence of the reactive approach in numerous regulatory fields, including anti-terrorism, public health, refugees, and arms control. Thereafter the Article analyzes the root causes of international law’s reactive paradigm and highlights the paradigm’s limitations. The Article then turns to lay the theoretical foundations for a novel approach to the evolution and functioning of the discipline, called “proactive international law.” It presents the proactive approach’s core elements and identifies ways to mainstream them into the international legal system, thereby making long-term—even if uncertain—problems and advancements a real regulatory priority on the international agenda
Labor Law’s Preemption Problem: Glacier Northwest and What the Fate of Garmon Means for American Workers
No full textThe Supreme Court’s 2022–2023 term was, unsurprisingly, terrible for millions of Americans. From the environment to affirmative action to student loan forgiveness, the Court remained committed to its project of reshaping the nation’s laws in its conservative image. But despite its well-demonstrated antipathy for organized labor, the Court in Glacier Northwest v. International Brotherhood of Teamsters managed to leave a long-standing, purportedly worker-friendly doctrine in federal labor law largely intact. Glacier Northwest presented the question of whether an employer may sue a union in state court for damages over a strike that allegedly causes property destruction, or whether, under the Court’s decision in San Diego Building Trades Council v. Garmon, an employer’s claim is federally preempted and thus must be brought before the National Labor Relations Board if it alleges conduct that is even “arguably” protected or prohibited by the National Labor Relations Act. Rather than do what many feared it might and overrule Garmon, the Court instead found that the Teamster’s alleged conduct—allowing delivery drivers at a cement factory to fill their trucks with wet cement before calling a strike, thereby creating the risk of imminent property destruction—was not even arguably protected by federal law. The Court thus declined its invitation, at least for now, to discard a doctrine that has traditionally been viewed as a shield against costly state lawsuits by employers.
As this Note seeks to demonstrate, however, Garmon’s application within the current labor and employment law landscape is more ambiguous than the reaction to Glacier Northwest might imply. Indeed, recent case law suggests that Garmon is no longer serving American workers in the same way it did when it was decided, during the industrial pluralist heyday of the 1950s. This Note expands upon the existing body of scholarship that has criticized Garmon as overly broad and ill-suited to the realities of the modern American workplace. It argues that Garmon has in part become a procedural tool for employers, both those seeking to avoid liability for violating their employees’ rights under state law, as well as those seeking to avoid compliance with state and local ordinances aimed at shoring up workplace protections. It concludes by suggesting that as long as the NLRA remains woefully deficient in terms of protecting workers and unions from extreme union-busting tactics, federal preemption should not stand as an obstacle to state and local causes of action and experimentation aimed at facilitating workplace justice
Justice, a Photo Series
No full textThe following two photos were shot as part of a photo series at a Black Lives Matter protest in Long Beach, California circa 2018. These photos were shot on black and white film with a vintage 35mm Rangefinder
