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The Tax Treatment of Student Loan Discharge and Cancellation
Get PDFThe standard view is that, absent an express exclusion in the tax code, cancellation of student debt is taxable. Under this view, any immediate debt relief through administrative action would generate a tax bill. More troubling, the millions of borrowers in Income-Driven Repayment could face a “tax bomb” because of their promised loan cancellation, potentially hitting borrowers with bills for $100,000 or more in the same year that the government tells them their loan obligations have ended. These perverse outcomes are, however, based on a misreading of the tax law. The standard tax treatment of debt cancellation does not work with student loans, for three principal reasons. First, the history of student debt cancellation reveals that for decades any cancellation was treated as a non-taxable “scholarship,” and that likely continues to be the law applied to student loan interest subsidies. Congress added the specific exclusion for Public Service Loan Forgiveness to the tax law in 1976 so as to overrule an erroneous IRS ruling and maintain this status quo, not to carve out a limited exclusion. Second, a “general welfare exclusion” applies to numerous government payments that have a purpose of promoting the general welfare, most particularly disaster relief payments. That same logic applies to student debt cancellation, both from IDR and administrative action. Third, the complex structure of student loans, especially those in IDR, raise serious and complicated tax law questions about the nature of the debt instruments, whether the liabilities are so contingent as to be outside the standard treatment, and indeed whether they would even qualify as “debt” for tax purposes in other contexts. For these reasons and others, Treasury and the IRS have sufficient legal authority to rule that they will not assert taxation against borrowers with cancelled student loans, and they should do so
Drug Policy Reform in the Americas: A Welcome Challenge to International Law
Get PDFDrug policy in the American hemisphere is in flux. After decades whereby a prohibitionist regime reigned supreme and proposing alternatives was taboo, several countries have begun to reconsider policy, particularly in the case of marijuana. International law has been instrumental in building the legal and institutional regime of prohibition, and it has remained largely impervious to critiques of its disastrous consequences. Indeed, when it comes to drug law and policy, international law has been part of the problem. Nevertheless, countries in the Americas have begun to adopt innovative strategies that also embrace international obligations. In this essay, I examine the failures of the law and order paradigm behind prohibition. I then analyze legal reforms in the Americas as motivated by three different perspectives: 1) human rights, 2) public health and 3) political economy. Each one offers a powerful challenge to prohibition but relies on different assumptions and offers different transformative potential
Quantifying the Increase in “Effective Concentration” from Verticle Mergers that Raise Input Foreclosure Concerns: Comment on the Draft Vertical Merger Guidelines
Get PDFThis comment responds to the request by the Federal Trade Commission and the Department of Justice’s Antitrust Division for public comment on the draft 2020 Vertical Merger Guidelines. In this comment, we show that there is an inherent loss of an indirect competitor and competition when a vertical merger raises input foreclosure concerns. We also show that it then is possible to calculate an effective increase in the HHI measure of concentration for the downstream market. We refer to this “proxy” measure as the “dHHI.” We derive the dHHI measure by comparing the pricing incentives and associated upward pricing pressure (“UPP”) involved in two alternative types of acquisitions: (i) vertical mergers that raise unilateral input foreclosure concerns (and the associated vertical GUPPI measures), and (ii) horizontal acquisitions of partial ownership interests among competitors that raise unilateral effects concerns (and the associated modified GUPPI and modified HHI measures)
The Law Against Family Separation
Get PDFThis Article offers the first comprehensive assessment of how domestic and international law limits the U.S. government’s ability to separate foreign children from the adults accompanying them when they seek to enter the United States. As early as March 6, 2017, then-Secretary of Homeland Security John Kelly told CNN’s Wolf Blitzer that he was considering separating families at the border as a deterrent to illegal immigration as part of a “zero tolerance” policy whereby the Trump administration intended the strictest enforcement of immigration law against those migrants coming to the U.S. southern border . Kelly did not say upon what legal basis the administration could lawfully separate families at the border as a component of its immigration policies. Whatever the merits of maximal prosecution of adults unlawfully crossing the border, adopting this policy did not convert family separation into a lawful byproduct of the arrest of an adult. To the contrary, domestic and international law militates strongly against the lawfulness of family separation as a tool for immigration deterrence, yielding liability for the state and for individuals who implement family separation in this setting. Both litigation and Congressional action can and should play a role in addressing the Trump administration’s use of family separation and ensuring that it is halted now and not used again, by Trump or any other U.S. President.
In the Article, we start with a factual chronology of the Trump Administration’s family separation policy. We then argue for our positions regarding the illegality of the policy and its implementation. In Part II, we describe the federal government’s recognized authority to enforce immigration laws and ensure border security, on the one hand, and the domestic constitutional framework for protecting the basic rights of migrant parents and children, on the other. In Part III we examine the reach of domestic law, including the common law of torts, for dealing with wrongful family separation in the immigration setting. Part IV reviews international law that protects against this harm. In the Conclusion we propose a range of steps that the U.S. Congress could take to repair at least some of the harm caused by the family separation policy, and to ensure that no future administration contemplates similar action
US Emergency Legal Responses to Novel Coronavirus: Balancing Public Health and Civil Liberties
No full textWith rising cases of Novel Coronavirus (2019-nCoV) globally and in the United States, Health and Human Services (HHS) Secretary Alex Azar declared a national public health emergency on January 31st. HHS’ emergency declaration authorizes additional resources, enhanced federal powers, interjurisdictional coordination, and waivers of specific regulations. State and local declarations are also likely. During crises, government has a special responsibility to thoughtfully balance public health protections and civil liberties
Formulating the International Tax Debate: Where Does Formulary Apportionment Fit?
Get PDFAs the contributions in this volume are being written, the Inclusive Framework nations, a group drawn together by the Organisation for Economic Co-operation and Development (OECD) as part of its Base Erosion and Profit Shifting (BEPS) project, are in the midst of a consultation process intended to revise the international corporate tax profit allocation and nexus rules. At the end of May 2019, the OECD released its Programme of Work to Develop a Consensus Solution to the Tax Challenges Arising from the Digitalisation of the Economy. At the beginning of June 2019, this Programme was endorsed by the G20 Finance Ministers during their ministerial meeting in Fukuoka, Japan.
To use the OECD’s terminology, the proposals under consideration to revise the current nexus and profit allocation rules would create a ‘new taxing right’ to be allocated to the ‘market jurisdiction’. The Programme of Work describes certain technical issues that must be considered when making such fundamental changes to the international tax architecture.
The OECD’s work on these major revisions to international tax norms is being undertaken under the auspices of the Inclusive Framework. The Inclusive Framework arose out of a G20 request that the OECD create a body in which all interested countries – regardless of G20 or OECD membership – could participate in the BEPS project on an equal footing. The subsequently developed Inclusive Framework allows interested countries to work with the OECD/G20 on developing standards on BEPS-related issues. As of this writing, over 125 countries have joined the Inclusive Framework and committed to implementing the comprehensive BEPS package. It was clear from the outset that the Inclusive Framework could be used as a stand-in for a world tax organization. In the current OECD project on profit allocation, it is in effect being used in that manner for the first time.
The Inclusive Framework is not currently considering a full move to formulary apportionment, as that term is understood in this volume. Yet evaluation of the proposals under consideration by the Inclusive Framework suggests that each and every one can be improved by reappraising formulary apportionment. Accordingly, the purpose of this chapter is to highlight the relationships between the options under consideration in the current OECD-led process and ‘formulary apportionment’, as that term is used elsewhere in this volume.
Section 11.02 of the chapter briefly offers some background on the major developments – arguably, tectonic shifts – of the last few years in the international tax arena. Section 11.03 describes the proposals for revising the profit allocation rules that are currently under consideration by the Inclusive Framework. Section 11.04 fleshes out ‘straw men’ that develop these ideas in greater detail, with the purpose of highlighting that the proposals that are under consideration by the Inclusive Framework at the time of this writing are partially formulary approaches and that lessons from formulary apportionment likely carry over to any partially formulary system that may be developed multilaterally in the future
Three Keys to the Original Meaning of the Privileges or Immunities Clause
Get PDFEstablishing the original meaning of the Fourteenth Amendment’s Privileges or Immunities Clause requires a wealth of evidence. But three key data points are crucial to identifying the core of its meaning. First, Supreme Court Justice Washington’s explanation of the meaning of “privileges and immunities” in Corfield v. Coryell; second, the rights protected by the Civil Rights Act of 1866; and third, Michigan Senator Jacob Howard’s speech explaining the content of the Privileges or Immunities Clause when introducing the Fourteenth Amendment to the United States Senate in 1866. Any theory of the Privileges or Immunities Clause and its original meaning that cannot comfortably accommodate these three items is highly questionable
Lighting the Fires of Learning in Law School: Implementing ABA Standard 314 by Incorporating Effective Formative Assessment Techniques Across the Curriculum
Get PDFThe American Bar Association now requires law schools to incorporate formative assessment into the law school curriculum by providing feedback to students relating to course-specific learning goals before the end-of-semester exam. Peer reviews and self-evaluations are two powerful formative assessment techniques that faculty can use to meet the new ABA standards to assess the students’ learning outcomes while courses are ongoing, creating more effective learning environments within the classroom.
This article argues that peer reviews and self-evaluations can be successfully used across the law school curriculum to deepen student understanding, encourage student cooperation, and develop students’ abilities to be self-regulated learners in law school. We provide background on the power of formative assessment in general as a teaching and learning tool, and then move on to focus specifically on peer reviews and self-evaluations. The nature and essential components of these formative assessment tools in teaching and learning contexts are explained, with a discussion of research supporting their usefulness in enhancing learning across multiple educational contexts and disciplines. We provide examples of how both peer review and self-evaluation exercises have already been used in some courses and make specific suggestions regarding how these tools can be used across the law school curriculum as effective formative assessment tools, serving the goals of ABA Standard 314 without creating an undue burden on faculty even in large classes that rely primarily on a lecture or Socratic dialogue format. Finally, we conclude that incorporating formative assessment across the law school curriculum will benefit teachers and learners alike and suggest ways for law schools to create express incentives for faculty to develop and implement peer review and self-evaluation exercises across the curriculum
Transportation in a Changing Climate: Innovating to Create Resilient, Low-Carbon Systems
Get PDFThe climate is changing rapidly, bringing new temperature highs and weather extremes and affecting every individual, community, and sector of society—including transportation. Although, at times, climate change may feel like an insurmountable challenge, humanity is resilient and innovative. Transportation ultimately is about people: connecting people to places, to goods and services, and to each other. Because of its central role in the functioning of society, the transportation system—including its infrastructure, networks, and workforce—is an essential part of addressing and responding to climate change.
This article discusses challenges and opportunities for building resilient and low-carbon transportation solutions in the United States
Governmental Public Health Powers During the COVID-19 Pandemic: Stay-at-home Orders, Business Closures, and Travel Restrictions
Get PDFThe president and all 50 governors have declared health emergencies to combat the spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), which causes coronavirus disease 2019 (COVID-19). While researchers race for vaccines, officials are implementing physical distancing, including orders to stay at home, restrict travel, and close non-essential businesses. To limit cross-border spread, a few states have issued mandatory quarantines for interstate travelers. Models suggest physical distancing would have to persist for 3 months to mitigate peak impacts on health systems and could continue on an intermittent basis for 12-18 months. What legal powers do governments have? What is the role of the courts? How can we balance public health with personal and economic rights