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List It or Lose It: The Application of Judicial Estoppel When a Debtor Fails to List a Claim
Get PDFThis Comment addresses the application of judicial estoppel to dismiss a debtor’s civil or administrative claim when the debtor fails to list his claim on the required schedule. Part I of this Comment analyzes the general concept of equity and the principles underlying judicial estoppel. Part II analyzes equity and judicial estoppel through the lens of the bankruptcy system. Part III presents my proposed test to determine when it is appropriate for courts to invoke judicial estoppel to dismiss a debtor’s undisclosed claim when the trustee has decided to abandon it after it has been discovered. This test considers four factors: (1) the legal sophistication of the debtor; (2) the events prompting disclosure; (3) whether there was any showing of inadvertence or attempts to disclose the claim; and (4) the reasons underlying the decision for the trustee to abandon the claim once discovered. The Comment concludes that a strict approach, as advocated by the proposed test, is the best way to protect the integrity and promote the efficient functioning of the bankruptcy system
Continuation of Chapter 13 Postmortem: Why Courts Should Allow Deceased Debtors\u27 Cases to Continue Post Plan Confirmation
Get PDFA lack of direct guidance from Rule 1016 of the Federal Rules of Bankruptcy Procedure has created inconsistency among bankruptcy courts regarding whether to continue a chapter 13 case if the debtor dies post plan confirmation but before discharge. Rule 1016 allows a deceased debtor’s chapter 13 case to continue if “further administration is possible” and it is “in the best interests of the parties.” Although dismissal is appropriate if the debtor dies before plan confirmation, continuation after plan confirmation is possible and benefits all parties. The benefits of continuation post plan confirmation stem from the certainty under federal bankruptcy law regarding what pre-petition creditors will receive and allows beneficiaries and post-petition creditors to have access to the decedent’s assets in probate, rather than all three parties fighting over the decedent’s assets in probate. Continuation of the bankruptcy case results in creditors receiving their expected distribution amount under the confirmed payment plan (through continued plan payments made by the decedent’s beneficiaries) or unsecured creditors receiving at least as much as they would have received under chapter 7 (through conversion to chapter 7). A hardship discharge may also be warranted if the decedent’s unsecured creditors have already received at least as much as they would have under chapter 7. Courts should permit continuation of the bankruptcy case and ultimately award a discharge if a chapter 13 debtor dies post plan confirmation because it will create uniformity among bankruptcy courts, equitable treatment among chapter 13 and chapter 7 debtors, and more certainty to both the decedent’s beneficiaries and her creditors
Ten Truths About Tax Havens: Inclusion and the Liberia Problem
Get PDFThere has been a decades-long effort to repair an increasingly fragile international tax system. One reason it has foundered has been what we identify as the “Liberia problem.” In 2000, the powerful Organization for Economic Cooperation and Development identified Liberia—but not Switzerland—as a tax haven and targeted it for sanctions. It did not go well. During the two decades since, everything has changed; yet seemingly from this lens of inclusion, nothing has changed at all. Awkwardly similar “blacklists” still target “Black” and “Brown” jurisdictions despite the fact that experts mean something quite different when they speak of the “scourge of tax havens” and secrecy jurisdictions. We think differently in important respects but believe that those real disagreements demonstrate the need for a less insular global tax policymaking apparatus. And we share a conviction that a more inclusive and more level playing field in the international tax arena would benefit all states. To show why, we offer a series of “truths” designed to prompt a long-overdue conversation about perceptions of bias and privilege in international taxation
The Political Remedies Doctrine
Get PDFThis Article describes and analyzes a hitherto unrecognized doctrine—the political remedies doctrine. That doctrine maintains that courts ought not adjudicate separation of powers claims until both political branches of government have asserted their rights. The doctrine has escaped analysis (and even explicit notice) because judges camouflage it, employing it while invoking the more familiar rubrics of ripeness, standing, political question, and equitable discretion. Justice Powell provided the leading articulation of the doctrine, but the Supreme Court as a whole has never squarely endorsed it. The political remedies doctrine, however, has played a surprisingly important role in the lower courts, helping justify refusal to adjudicate war powers claims and cases arising from President Trump’s challenges to the constitutional order. While invoked as a neutral rule, the courts always apply the doctrine to shield presidential acts from judicial scrutiny and never to protect acts of Congress from judicial interference. Accordingly, it aids aggrandizement of presidential power. Partly for that reason, this doctrine has great potential to unravel the rule of law and even, during times of partisan stress, to hasten the collapse of the separation of powers undergirding our democracy. This Article claims that the courts should not apply this doctrine, except perhaps to avoid adjudication of challenges to bipartisan legislation signed by the President. It employs a Coasean property rights analysis to provide new insights germane not just to this doctrine, but also to debates about the proper role of bargaining in resolving separation of powers questions, the relationship between law and politics, and how the courts should approach justiciability doctrine more generally. That Coasean analysis shows that judicial resolution of a separation of powers claim on the merits does not preclude political bargaining, but simply determines a baseline for future negotiations. Conversely, dismissing a claim because of the potential for political bargaining functions much like a ruling on the merits, also creating a constitutional baseline for future political negotiations. Hence, the justiciability issues involved when political remedies are invoked do not present a choice between political and judicial resolution of disputes, but rather a choice about baseline power allocations form which to conduct future bargaining. Thus, analysis of this hitherto unrecognized doctrine yields valuable insights
Bias and Immigration: A New Factors Test to Examine Extrinsic Evidence of Animus in Immigration Cases
Get PDFCourts have historically struggled to consistently consider extrinsic evidence of animus and bias in immigration cases. In two key cases concerning challenges to restrictive immigration policies of the Trump Administration—Trump v. Hawaii and DHS v. Regents of the University of California—the Supreme Court shied away from considering numerous examples of former President Trump’s discriminatory rhetoric and public comments of religious and racial animus that would challenge the constitutionality of the policies. Instead, the Court invoked the historically prominent deference to the executive branch’s immigration power and to the interest in national security. However, the Court’s quick dismissal of extrinsic evidence of biased comments departs from compelling legal precedent. In multiple previous cases concerning immigration and other matters, courts have looked beyond the record at public statements made by high-ranking government officials involved in the promulgation of policies that became the subject of legal challenges. Thus, courts’ inability to consider extrinsic evidence of animus stemming from former President Trump exposes a weakness in the existing legal analytical framework and suggests the need for an alternative test. Deference to national security should not justify excluding entire categories of evidence that may reveal the unconstitutionality of an immigration law. To address these shortcomings, this Comment proposes a new factors test to assist courts in considering how much weight to give to external statements of bias and animus in immigration cases. Courts should weigh five key factors: (1) the identity of the speaker, (2) the temporal proximity between the biased statement and the challenged government action, (3) the scope of the statement’s entry in the public sphere, (4) the frequency of the statements, and (5) whether a reasonable observer would view the government action as enacted because of animus toward a particular protected class. In a post-Trump era where unbridled political rhetoric has been normalized, use of this new test will allow courts to deal with overt statements of bias more consistently and avoid upholding discriminatory immigration policies under the guise of national security
Regulatory Competition and State Capacity
Get PDFThis Article explores an underlying tension in the regulatory competition literature regarding why some jurisdictions are more attractive to firms than others. It pays special attention to offshore financial centers (OFCs). OFCs court the business of nonresidents, offer business friendly regulatory environments, and provide for minimal, if any, taxation on their customers. On the one extreme, OFCs are theorized as merely products of legislative capture— thereby lacking any meaningful agency of their own. On the other hand, OFCs are conceptualized as well-governed jurisdictions that attract investment because of the high quality of their laws and legal institutions—indicating some ability to manage legislative capture. This Article argues that the prevailing explanatory frameworks for OFC development and success overlook deeper institutional structures within these jurisdictions. Drawing on the political sociology literature on state development, this Article offers a new theoretical framework. It suggests that some OFCs may have experienced more success than others because of how they developed “state capacity”—i.e., their ability to formulate and implement specific kinds of policy choices skillfully and effectively. This Article makes two important contributions to the regulatory competition and OFC literatures. First, it places the institutional quality of jurisdictions at the center of the discourse and analysis of OFC achievements in the business law arena. Second, it introduces the interdisciplinary concept of “state capacity” into the growing scholarly debate concerning the rise of OFCs
Pandemics, Paid Sick Leaves, and Tax Institutions
Get PDFThe COVID-19 pandemic is currently ravaging the world, and the United States has been largely unsuccessful at containing the coronavirus. One long-standing policy failure stands out as having exacerbated the pandemic in our country: the lack of a national mandate of paid sick leaves, without which workers face financial and workplace-cultural pressures to attend work while sick, thus spreading the virus to their fellow employees and the public at large.
This Article provides the blueprint for a national, subsidized mandate of paid sick leaves and two additional insights about our tax institutions as mechanisms of effectuating broader societal goals. It first justifies a paidsick- leave mandate on the grounds of market failures (both cognitive biases and externalities) and workplace equality. It also argues for the need of subsidies in order to protect lower-income workers from unemployment risks imposed by a national mandate. Second, the Article critically assesses the current federal legislative approach utilized in the Families First Coronavirus Response Act (FFCRA). Third, the Article proposes designing a national employer mandate of paid sick leaves funded by general-revenue business tax credits and providing partial wage replacement.
This Article’s discussion of paid sick leaves yields two insights about our tax institutions. It questions the role of payroll taxes, which are highly regressive, impose burdens almost exclusively on labor, and are normatively unjustified when the spending funded by payroll taxes benefits the broader non-wage-earning public. The Article also reveals the malleability of tax institutions with respect to funding, administrability, and costs. These comparative advantages of tax institutions make them perennially popular in times of crisis
Systemic Racism, the Government\u27s Pandemic Response, and Racial Inequities in COVID-19
Get PDFDuring the COVID-19 pandemic, federal and state governments have disregarded racial and ethnic minorities’ unequal access to employment and health care, which has resulted in racial inequities in infections and deaths. In addition, they have enacted laws that further exacerbate these inequities. Consequently, many racial and ethnic minorities are employed in low-wage essential jobs that lack paid sick leave and health insurance. This lack of benefits causes them to go to work even when they are sick and prevents them from receiving appropriate medical treatment. As a result, racial and ethnic minorities have disproportionately been infected and died from COVID-19. Although these actions seem race “neutral,” they exemplify systemic racism, wherein racial and ethnic minorities are deemed inferior to white people, and thus do not receive the same access to resources, such as employment and health care. This Essay illustrates how systemic racism has resulted in racial inequities in COVID-19 infections and deaths through case studies in employment and health care. Using the health justice framework, it concludes with suggestions to eradicate systemic racism, redress harm, and engage communities in implementing an equitable pandemic response
Systemic Racism and Housing
Get PDFAfter the Great Depression and World War II, political leaders in this country enacted laws and adopted policies that made it easy for families to buy homes and increase their household wealth. This housing relief was limited to whites, though. Blacks and Latinos have always struggled to buy homes or even find safe and affordable rental housing. State and federal laws now ban discrimination based on race in housing and mortgage lending markets. But the legacy of early racist laws combined with ongoing discrimination by private actors, exclusionary zoning laws, and even ostensibly race-neutral actions like gentrification increase housing costs for Blacks and Latinos and make it harder for them to buy homes, particularly in high-opportunity neighborhoods. This Essay describes the roles public and private actors have played and continue to play in creating racial disparities in U.S. housing markets. Given the sullied history of racism in housing and lending markets and current facially neutral federal tax and local land use laws, this Essay argues that the only way to close racial housing disparities is to enact laws and policies that are specifically designed to undo prior acts or conduct
Canals, Community, and Coastal Permits: Overcoming Inadequate Remedies for Erosion Within the Barataria-Terrebonne National Estuary
Get PDFThe Barataria-Terrebonne National Estuary has lost over 934 square miles of land since 1932, causing a mass exodus of communities within the estuary, including the Biloxi-Chitimacha-Choctaw tribe of Isle de Jean Charles. Though some of this erosion can be attributed to rising sea levels and natural subsidence, scientists now realize that the majority of this loss has been caused by human development. Specifically, navigation and pipeline canals dredged by the oil and natural gas industry are alleged to be responsible for as much as 89% of all land lost within Louisiana before 1983. This ongoing land loss has led to numerous attempts to hold developers liable for the damage, but the Louisiana Code does not support non-adjacent erosion claims under theories of tortious nuisance, nor can plaintiffs succeed as third-party beneficiaries from the licenses and permits issued to developers. Federal coastal legislation—sometimes used as a last resort—is similarly ineffective in land loss suits by individual litigants. Though some recent federal decisions would support a Fifth Amendment takings claim for non-adjacent erosion to the extent that causation could be proven, myriad hurdles stand in the way. A six-year statute of limitations on takings claims would prevent most successful claims, and the 10,000-mile network of canals in Louisiana would preclude practical causation determinations. Worse, the damages would be limited to the land actually taken: a few feet of property in most instances. Further, compensating a landowner for eroding shoreline does nothing to mitigate future erosion, nor does it combat the threat that sea level rise might claim these coastal communities even before the land erodes from beneath them. Coastal communities suffering from land loss frequently condition coastal development permits on impact fees that go to wetlands restoration funds. This Comment proposes that these coastal impact fees be drastically elevated to include mandatory contributions to a relocation fund for refugees of coastal land loss. Such a fund would be an adequate remedy for those unable to undergo the extensive causation burdens of viable takings claims and for whom claims in tortious nuisance and contract can provide no relief. Most importantly, it would place the cost of relocation on those accountable—oil and natural gas companies—instead of taxpayers