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A Scientific Method for International Taxation?
Get PDFFractioning and fairly distributing parts of a whole is never quite straightforward. Whether we speak of justly portioning and dividing scrambled eggs between siblings or jurisdictional claims over the ocean space between nations, reckoning with the dilemmas of sharing is an integral part of the human experience. Acknowledging that, this essay contends that contemporary discussions on fairness in international taxation ought to be situated within this broader context. It is centrally argued that justly allocating taxing entitlements over cross-border wealth is a task contingent on the same subjective predicaments seen in the division process of any given valuable whole. The analysis proceeds by reference to two proposed elements, namely unrestrained perception of value and nature of the divided thing. In conclusion, it is reasoned that, while a strictly objective (often termed scientific) conception of international taxation is unattainable, a less biased version, inspired by double-blind methodology, may be within reach
Procedural Justice and the Shadow Docket
Get PDFThis Article critically examines the role of procedural justice in shaping public perceptions of the U.S. Supreme Court’s legitimacy, particularly in light of recent Court actions, including the leak of a major opinion and the increasing, potentially politicized, use of its shadow docket. Drawing from the procedural justice model—which posits that legitimacy is primarily founded on the decision-making processes and principled judgments of the Court—this Article investigates whether the decline in confidence experienced by the Court can be attributed, at least in part, to its shadow docket.
Utilizing an experimental survey conducted over three critical time points—coinciding with the leak of the Dobbs v. Jackson Women’s Health Organization decision, its subsequent announcement, and a period of procedural calm—this Article measures the public’s reaction to various procedural scenarios, including the usage of the emergency docket. Results indicate that while the use of the emergency docket doesn’t substantially erode the Court’s diffuse support, it does impact how much respondents approve of how well the Court is doing its job, significantly so when filtered through policy agreement. This Article further finds that the Court’s Dobbs decision strongly influenced perceptions, particularly among those aware of the leak or the opinion, with disagreement causing more pronounced and consistent negative effects than the partial positive effects from agreement.
These findings underscore the impact of the Court’s own behaviors on its perceived authority, suggesting that the justices’ actions, particularly their adherence to fair and transparent procedures, can bolster the Court’s legitimacy. As such, this Article highlights the urgent need for the Supreme Court to embrace resolving legal questions via due process in order to reaffirm its critical role in our democracy and regain public trust
Off-Label Speech
Get PDFThis Article argues that the Food and Drug Administration (“FDA”) should regulate drug manufacturer speech about off-label uses based on the evidentiary support for the relevant use. The more evidence that an off-label use is safe and effective, the less restrictive the regulation should be. The less evidence that an off-label use is safe and effective, the more restrictive the regulation should be. Although intuitive, this is not exactly how current regulation of off-label information works. If the FDA approves a drug, the manufacturer can advertise to doctors and patients for the approved indication. Drug manufacturers cannot, however, promote or provide information about an approved drug for an unapproved use—so-called “off-label” use—unless they fall within two narrow safe harbors. Yet many off-label uses are just as safe and effective as on-label (approved) ones. Other off-label uses are supported by quality clinical trial data even though they are not approved.
While the FDA recognizes that not all off-label uses are equally (un)supported by the same level of evidence, it has faced legal and practical challenges regulating information about them in a nuanced way. Courts have held unconstitutional the FDA’s regulations purporting to ban promotional off-label speech by drug manufacturers. And the safe harbors it has constructed are too shallow for much useful speech. To address these challenges, this Article proposes a new approach: working collaboratively with the Centers for Medicare and Medicaid Services, the FDA can use drug compendia—which identify, evaluate, and rate off-label uses—to create a graded system for regulating how drug manufacturers disseminate information about off-label uses that links informational restrictions to the level of evidence supporting the disseminated use. Not only does this system enable a flexible and evidence-based regulatory regime, it also can be easily designed to survive constitutional scrutiny
Are the Spratly Islands an Outlying Archipelago of China? Politico-Legal Implication of Proclaiming the Spratly Islands as a China’s Outlying Archipelago that International Lawyers Should Know
Get PDFThe issue of the outlying archipelago of continental states under the UNCLOS system has become a serious point of contention among international lawyers. This article shows what rules international lawyers in states possessing outlying archipelagos may have found for their outlying archipelagos, thereby assessing the Chinese claims to the Spratly Islands as an outlying archipelago. This article also explores how a future Chinese proclamation of special baselines for the Spratly Islands as an outlying archipelago negatively influences the development of the South China Sea dispute, harming Chinese national interests as opposed to conventional wisdom in China
Status Check: Should the Federal Tax Status of a Disregarded Debtor Be Property of the Estate?
Get PDFThis Comment focuses on whether the tax status of a debtor constitutes “property” of the debtor’s estate under 11 U.S.C. § 541(a). The answer to this question ultimately determines whether a bankruptcy trustee has the power to avoid a “check-the-box” tax status change made by the owner of a debtor entity from a “pass-through” to a separately taxed C Corporation. This issue normally arises when the parent corporation or individual owner of a debtor subsidiary corporation or disregarded entity (to the individual owner) elects to transform the status of the debtor by “checking the box” on the proper federal tax form.
This Comment utilizes a hypothetical scenario involving an individual who owns a pass-through entity which holds a completely depreciated piece of real property. The individual decides to leverage the piece of real property but, through a series of misfortunes, is subsequently forced to place the entity holding that real property into bankruptcy. In bankruptcy, the distressed property is sold in a forced sale that is a taxable event. The individual owner of the debtor entity is motivated to make a prepetition or post-petition tax status change in entity type to a C Corp because the tax obligation resulting from the gain on sale of the real estate no longer “passes through” to the owner’s tax return once the change is made. Instead, the tax gain remains with the newly-transformed C Corp and the bankruptcy estate. In effect, the change in tax status allows the owner of a debtor entity to shift the tax burden normally flowing to the owner as a pass-through gain to instead be paid by the bankruptcy estate simply by making a change on a tax form. Check-the-box changes can also tangibly affect other kinds of tax attributes, such as the ability to use NOLs.
Courts are split on whether the debtor entity’s tax status constitutes property. This Comment advocates for the position taken by the Third Circuit, that ultimate control of the debtor’s tax status is contingent on the will of the parent-owner of the debtor and is therefore, not property. This Comment argues against courts within the Sixth and Ninth Circuits, which have held that tax attributes of a debtor are property of the debtor’s estate protected by the automatic stay under 11 U.S.C. § 362(a) and are therefore subject to the trustee’s avoidance powers under sections 544, 548, and 549 of the Bankruptcy Code
Financial Security Mechanisms to Cover Biodiversity Damage Resulting from the Use of Genetically Modified Organisms
Get PDFThe City Suit
Get PDFThis Article addresses the role of local governments in the most American of activities: the lawsuit. During the last few decades, city litigation has grown more proactive, diverse, and prominent. Cities now frequently file lawsuits respecting the most notable issues of the day. Each of these suits involves specific policy concerns peculiar to its subject matter, but as a group—as a legal phenomenon—they all raise common, and disputed, doctrinal questions pertaining to standing, local preemption, res judicata, state immunity, and more.
When tackling these diverse doctrinal issues—sounding in both civil procedure and local government law—courts and scholars have failed to establish a coherent and principled approach. Such an approach is attainable, however, once one recognizes that at their core all the disparate doctrines applicable to city suits give voice to the same foundational questions: (1) what is the nature of the city’s right to sue?, and (2) what is that right’s scope? This Article answers these two questions.
First, this Article establishes the nature of the city’s right to sue as inherent. For both conceptual and normative reasons, the defining element of cityhood has always been the city’s status as a separate legal entity—its corporate personhood. Corporate personhood, in turn, is manifested through the right to sue and be sued. Cities’ right to sue, therefore, persisted throughout Anglo-American legal history. Contemporary criticisms notwithstanding, city suits are not some newfangled tools of social reform.
Second, this Article explains that because the right to sue expresses the city’s separate status, its scope is limited to suits that protect the city’s own separate interests as an entity—not simply the economic, political, or social interests of its residents. A city suit may serve, or even be motivated by, residents’ interests, but it must also further an independent city interest. A city suit solely reflecting residents’ interests undermines the social promise of the city as a distinct and collective body. Contemporary proponents’ enthusiastic embrace of the city suit often misses this limitation.
Drawing the connection between the city suit and cityhood, this Article thus answers both the doctrinal and academic challenges of the day. It provides ready solutions to civil procedure and local government law problems that have bogged down courts, while offering a normative theory of the city suit firmly grounded in values associated with the law of the city on the one hand and with access to justice principles on the other. In so doing, it erects potential defenses for the city suit against challenges that might come from a federal judiciary hostile to public-interest litigation
The U.S.-Malta Treaty Retirement Account: The IRS’ Latest Listed Transaction
Get PDFThe IRS’s duty to ensure the public’s compliance with tax law largely involves defining what taxpayers must report on their tax returns. Since its formation in 1862 when Congress formed the Office of the Commissioner of Internal Revenue under the Treasury Department, citizens of the United States have developed unique schemes to pay less taxes. To create fairness, Congress granted the IRS the power to label certain taxpayer schemes as “listed transactions.” The IRS uses this power to list a certain transaction, triggering both a taxpayer participant and material advisor obligation to report any participation in said listed transaction including details about the transaction. Participants and material advisors who fail to comply with the listed transaction reporting results in financial penalties enforced by the IRS. There are currently 36 listed transactions available for viewing on the IRS’s website, yet the newest listing has yet to officially make the list. The Malta Personal Retirement transaction was conceived after the United States signed the U.S.-Malta Tax Treaty in 2008. This Treaty addressed the highly favorable tax law in Malta that allows individuals to place money in an account without being taxed upon contribution or dispersion, so long as the account is considered a pension or retirement account. Once the IRS became aware of the situation, the IRS began taking measures to place the Malta retirement scheme on their list of reportable transactions. However, in the past year, the IRS began changing the way it lists transactions due to courts rejecting some of their reportable and listed transaction notices (including those dealing with syndicated conservation easements and micro-captives). In 2022, the Tax Court ruled that the IRS must comply with guidelines enforced by the Administrative Procedure Act (APA). The most recent listed transaction (regarding syndicated conservation easements) was ruled void after the Tax Court found the IRS did not comply with the necessary notice-and-comment requirements. After the transactions were deemed void, participants and material advisors no longer have the obligation to report their conservation easement transactions. The IRS is taking measures to fix the problem, but the process is lengthy. The first major attempt at meeting the court-required APA compliance is the new Proposed Regulations on micro-captives.
To ensure the same error is not repeated with the Malta Personal Retirement Scheme proposal, the IRS is attempting to go through all the necessary steps to ensure proper notice-and-comment requirements are fulfilled so their listed transaction is upheld upon future challenge. Assuming everything goes smoothly in the September public hearing, the Malta Personal Retirement Scheme should successfully be added as the 37th listed transaction, and taxpayer participants and material advisors must abide by this regulation or suffer the penalties
Bad Faith Prosecution
Get PDFThere is no shortage of claims by parties that their prosecutions are politically motivated, racially motivated, or just plain arbitrary. In our increasingly polarized society, such claims are more common than ever. Donald Trump campaigned on promises to lock up Hillary Clinton for her handling of State Department-related emails, but he subsequently complained that the special counsel\u27s investigation of his campaign\u27s alleged contacts with Russian operatives was a politically motivated witch hunt. Kenneth Starr\u27s pursuit of investigations of Bill Clinton evoked similar arguments of political motivation.
The advent of progressive prosecutors will no doubt increase claims of bad faith prosecution, given their announcements of crimes they will and will not prosecute. Typically, they promise not to prosecute for lesser violations such as prostitution and drug possession. Although crime victims generally cannot complain that a perpetrator was not prosecuted, non-prosecution policies could strengthen claims of bad faith prosecution when prosecutors nevertheless prosecute some individuals for such delicts. In addition, candidates\u27 and officials\u27 statements that they intend to pursue certain individuals or groups may bolster claims of bad faith as evidenced in Donald Trump\u27s arguments of political motivation for investigations by New York Attorney General Letitia James