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Katherine Porter
No full textKatherine Porter at the Third Annual Celebration of Books, April 5, 2012.https://scholarship.law.uci.edu/celebration_of_books_2012_photos/1002/thumbnail.jp
An Immigration Law for Abolitionists (and Reactionaries)
Full text linkImmigration law gets most things wrong and satisfies no one—not immigrants, not moderates, not restrictionists, and not abolitionists (the #AbolishICE crowd). It is bad law premised on skewed epistemic inputs—the fantasies of U.S. citizens—and enforced by a national agency with bloated resources tasked with solving a problem (illegal immigration) that causes no material harm. Migration law’s biggest failing is that it admits far fewer immigrants than our country has the capacity to take in, as the decades-long, peaceful, and productive presence of twelve million undocumented immigrants definitively proves. The bankruptcy of immigration law has been obvious for a few decades at least, yet comprehensive immigration reform has been impossible to enact over the same time frame. Now, with the death of the most promising legislative reform effort in a generation at the hands of the unelected Senate parliamentarian, it’s past time for a reassessment of immigration law and the ends and strategy of immigration reform.
In this Article, I argue that the reasons for the impasse on reform are structural and require a structural overhaul: a reconstruction of immigration law that destroys one-size-fitsall, national control and places chunks of the immigration power back in local precincts in metro areas, counties, or towns. This decentralized approach can increase our immigrant carrying capacity by allowing places that want and need immigrants to invite and attend to as many as they like. With time, some pro-immigrant locales might even cultivate an abolitionist, open-borders immigration politics from the bottom up. It wouldn’t be the first time. The abolition of slavery and the gay rights movements were both nurtured in sub-national jurisdictions with special cultures and characteristics. Only after consciousness raising and proof of concept were secured were these radically new norms and modes of being scaled up.
A local immigration law may also better sate the needs of American reactionaries. Social scientists teach that many of us are dyed-in-the-wool authoritarians triggered by social and racial pluralism. This personality type can only be soothed with a restoration of a sense of “oneness or sameness.” Locating debates about racial and social pluralism—i.e., the immigration debate—at the national level constantly and unnecessarily triggers authoritarians. Many authoritarians live in places that are racially and socially homogenous. A more local immigration power would allow this group to sate their thirst for homogeneity without imperiling the benefits of immigration for the rest of us: the majority of Americans that enjoy and thrive in a pluralist, multiracial order
Targeting Tax Avoidance Enablers
Full text linkThe Panama Papers, the Paradise Papers, and the Pandora Papers have exposed how tax advisors, lawyers, financial institutions, and other intermediaries have helped the world’s economic elites hold their wealth through corporations and trusts organized in tax havens. These professional enablers are frequently located in a country other than that of the relevant taxpayers. This means that the tax avoidance enablers are often out of the reach of the victim governments.
How can a government counter the activities of professional enablers located in other countries? This has proven to be a formidable challenge. This Article proposes a novel solution: a new international reporting standard, referred to as Global Mandatory Disclosure Rules (GMDR), which will impose reporting obligations on intermediaries assisting taxpayers with designing and implementing cross-border tax schemes.
This proposal builds on the legal mechanisms currently deployed in several countries. Mandatory disclosure rules (MDRs), which require that intermediaries report their clients’ tax schemes, were introduced in the United States in the 1980s. Since then, MDRs have been adopted in several countries as domestic measures targeting local tax avoidance enablers and their clients. In recent years, the European Union and the Organization for Economic Cooperation and Development have introduced multilateral MDRs that focus on certain crossborder arrangements. Drawing upon these reporting regimes, this Article proposes GMDR as a comprehensive standard.
GMDR is a missing piece in the global tax transparency framework which could close gaps in other international tax reporting standards. This Article explains the need for GMDR, explores the relevant design options, and proposes an implementation strategy. As GMDR could be an indispensable tool in the international effort to curb cross-border tax abuse, this proposal deserves serious consideration
Religion, Discrimination, and the Future of Public Education
Full text linkThe Supreme Court’s recent decisions regarding the free exercise of religion threaten fundamental changes to public education. On their face, these decisions are relatively narrow. They prohibit states from explicitly excluding religious schools from participating in states’ tuition subsidy programs, otherwise known as private school vouchers. But school choice advocates and some scholars argue that the rationale in these cases also extends to religious organizations that want to operate public charter schools.
While these changes would drain enormous resources from an already underfunded public education system, even more important interests are at stake: antidiscrimination and basic core curriculum. More specifically, the further expansion of religion into voucher and charter programs calls into question whether states can require religious organizations to comply with antidiscrimination protections and deliver non-religious educational content that is consistent with state standards.
This Article is the first to demonstrate that religious schools’ right to participate in certain education programs is not a right to reset all the rules of those programs. First, states retain authority to control the curriculum that public dollars support in both charter and private schools. Second, states have an affirmative obligation under federal law to ensure that all parties participating in state education programs comply with secular and antidiscrimination standards. Thus, rather than using the Court’s recent free exercise cases as an excuse to retreat from antidiscrimination and secular standards, states must reinforce those norms in a way that is consistent with newly established—but limited—free exercise rights
Why Sovereigns Are Entitled to (Horizontal) Benefits of the International Rule of Law
Full text linkA dozen years ago, Jeremy Waldron published an influential article arguing that sovereign states are not entitled to the benefits of the international rule of law. His conclusion follows from his assertions that the purpose of the rule of law is to protect individual liberty, and the purpose of international law is to protect individuals. This article critically responds to his position. International law is based on the notion that states are autonomous and equal members of the international society ordered through legal relations. The legal relations of the international community of states, I argue, constitute the horizontal dimension of the rule of law, which Waldron overlooked. Focusing on horizontal rule of law functions, I provide descriptive, theoretical, and normative reasons why states are, and should be, entitled to the benefits of the rule of law
Christopher Whytock
No full textChristopher Whytock at the Annual Celebration of Books, March 27, 2023.https://scholarship.law.uci.edu/celebration_of_books_2022-2023_photos/1000/thumbnail.jp
Carrie Menkel-Meadow
No full textCarrie Menkel-Meadow at the Third Annual Celebration of Books, April 5, 2012.https://scholarship.law.uci.edu/celebration_of_books_2012_photos/1000/thumbnail.jp