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Like Circus Clowns and Movie Actors, Women Should Deduct Their Work-Appearance Costs
No full textClifford L. Porter Prize
A. Alstott, M. Graetz
Outstanding student performance in taxation open to students in other schools of the University.The tax law on the deductibility of working expenses seems, on its face, gender neutral.
A closer look shows that the doctrine fails to account for women’s working experiences, with the
result that working women pay higher income taxes than working men.
Women have historically been confined to the private sphere of the home and prohibited
from engaging in the public sphere, both explicitly and constructively. Though much has
changed in the world, scars of the previous division remain. The law of federal income taxation
in the U.S. draws a seemingly unrelated distinction between the ‘personal’ and ‘business’
expenses of working in the public sphere. Expenses which are ordinary and necessary for the
production of income are deductible, while those whose value is thought to be enjoyed more
personally are not. This doctrinal distinction grows out of a body of law that, in addition to being
drafted almost exclusively by men, contemplated a world in which the ‘production of income’
was taken on (and deducted) almost exclusively by men. Now that women make up about half of
the U.S. workforce, the line between business and personal costs of working may require a shift,
in consideration of women’s working experiences
The Reasonable Intelligence Agency
No full textVolume 47, Number 1, Winter 2022Article 57(2) of the First Additional Protocol to the Geneva Conventions requires parties to an armed conflict to “do everything feasible to verify” their objects of attack and take “all precautions” to minimize civilian casualties and unintentional damage to civilian property. This obligation has been interpreted in international law to require state parties to set up an “effective intelligence gathering system” that would properly identify targets using all technical means at the disposal of the combating forces.
But existing law has failed to define what “effective intelligence” looks like. Quite the opposite. Modern history is filled with examples of intelligence errors that resulted in calamitous civilian casualties. In this paper, I look at five such case studies, spanning various historical periods, geographical zones, and belligerent parties. Examining these cases, this Article makes the claim that faults in wartime intelligence production are not inevitable as is often presumed and that it is for a lack of specific regulation within the treatises of international humanitarian law (IHL) that they occur at the rate that they do.
Tribunals and military manuals guide us to rely on the “reasonable commander” test in determining the lawfulness of a particular strike. Yet, in the process we overlook the fact that any reasonable commander will turn to her “reasonable intelligence agency”—the contours of this standard are conspicuously under- defined. This paper takes a first step at proposing such a standard, a new duty of care, based on both historical analysis and emerging best practices. In so doing the paper proposes a path forward for addressing the accountability gap that permeates contemporary IHL as it relates to state responsibility for wartime errors and mistakes
How Functional Parent Doctrines Function: Findings from an Empirical Study
No full textToday, approximately two-thirds of US states have a functional parent doctrine-a doctrine that extends parental rights and/or parental responsibilities to a person based on the conduct of forming a parental relationship with the child and parenting the child, even in the absence of a biological, adoptive, or marital tie. These doctrines arise under a number of different labelsincluding de facto parentage, psychological parenthood, in loco parentis, and" holding out" parentage. They have been created by courts and codified by legislatures. Under some of these doctrines, a functional parent is a full legal parent; under others, the person receives only some parental rights and responsibilities. A growing number of jurisdictions now maintain more than one functional parent doctrine
HYPER-PRESIDENTIAL ADMINISTRATION: EXECUTIVE POLICYMAKING IN LATIN AMERICA
No full textLatin American presidents frequently exercise policymaking authority that would be the envy of U.S. presidents frustrated by a fractious Congress and hobbled by the lengthy rulemaking procedures of the Administrative Procedure Act ("APA"). This Article critiques the hyper-presidential administration of those Latin American democracies characterized by broad executive policymaking powers and limited procedural safeguards. In the United States, although some celebrate presidential dominance as a route to democratic accountability, others observe that presidents can undercut agency independence, effectiveness, and public transparency. Public participation through notice-and-comment procedures, enforceable in courts, provides the primary source of democratic legitimacy for regulations. We argue that without procedural checks on executive policymaking, a presidential administration in the United States can approach the hyper-presidential administrations of some Latin American countries, now and in the past. Presidents may use their regulatory powers to entrench and expand their policymaking discretion, thus undermining agencies' ability to engage in technical and independent decision-making and eroding effective legislative, judicial, and public scrutiny. Our review of public administration in Latin America underscores the importance of administrative procedures designed to provide legal safeguards against the abuse of executive policymaking power. Administrative law in the region focuses primarily on individual adjudications and the maintenance of public power, imposing few procedural constraints on the promulgation of regulations and other broad policies. Elections are a public check on the Executive, but they provide only retrospective and diffuse scrutiny. Attempts to use other legal mechanisms, such as separation of powers, constitutional rights, public information access, and direct democracy are positive developments. However, administrative law in much of the region has largely failed to constrain extensive and arbitrary executive policymaking. To ensure democratic accountability, countries in Latin America should consider procedural safeguards that guarantee reasoned and participatory processes in executive policymaking, drawing on the experience--both positive and negative--of the United States. Latin America's historical experience demonstrates the risks of hyper-presidential administration inherent to any presidential government, whether in Latin America or the United States. At the same time, recent developments suggest that the United States can learn how collective rights and direct democracy facilitate public participation in government decision-making
Why Robinhood Is Not a Fiduciary
No full textVolume 39-3This Note examines the theoretical and practical limitations of regulating broker-dealers under a fiduciary-duty paradigm. Drawing on a recent example of fiduciary regulation of broker-dealers in Massachusetts, as well as recent literature on the theoretical underpinnings of fiduciary relationships, this Note argues that fintech broker-dealers like Robinhood lack the elements of “discretion” and “best interest” necessary to establish a fiduciary relationship.
Beyond theoretical coherence, there are also practical reasons to seek an alternative to a fiduciary standard. These include the need to preserve the distinct market-making functions of broker-dealers and to address infrastructural problems beyond the scope of a recommendation. This Note proposes an alternative to fiduciary regulation: expanding Regulation Systems
Compliance and Integrity to include brokers like Robinhood
Hidden Agendas in Shareholder Voting
No full textVolume 39-3Nothing in either corporate or securities law requires companies to notify investors what they will be voting on before the record date for a shareholder meeting. We show that, overwhelmingly, they do not. The result is “hidden agendas”: for 88% of shareholder votes, investors cannot find out what they will be voting on before the record date. This poses an especially serious problem for investors who engage in securities lending: they must decide whether the expected benefit of voting exceeds the
expected benefit of continuing to lend their shares (or making them available for lending) without knowing what they will be voting on. All investors who engage in share lending are affected, but the problem is particularly acute for large investment
managers that have fiduciary duties related to voting. At present, they must discharge these duties in the dark.
We propose a straightforward solution: an amendment to the Securities and Exchange Commission’s proxy rules requiring public companies to file proxy statements at least five days before the record date for the meeting. This simple change would give investors the information they need to make an informed decision about whether to retain the right to vote or not. If we believe that shareholder voting is important, and that investment managers and others should decide whether to vote, we should give them the information they need to do so
EQUAL PROTECTION IN DOBBS AND BEYOND: HOW STATES PROTECT LIFE INSIDE AND OUTSIDE OF THE ABORTION CONTEXT
No full textIn two paragraphs at the beginning of Dobbs v. Jackson Women's Health Organization, the Supreme Court rejected the Equal Protection Clause as an alternative ground for the abortion right. As the parties had not asserted an equal protection claim on which the Court could rule, Justice Alito cited an amicus brief we co-authored demonstrating that Mississippi's abortion ban violated the Equal Protection Clause, and, in dicta, stated that precedents foreclosed the brief's arguments. Yet, Justice Alito did not address a single equal protection case or argument on which the brief relied. Instead, he cited Geduldig v. Aiello, a 1974 case decided before the Court extended heightened scrutiny to sex-based state action--a case our brief shows has been superseded by United States v. Virginia and Nevada Department of Human Resources v. Hibbs. Justice Alito's claim to address equal protection precedents without discussing any of these decisions suggests an unwillingness to recognize the last half century of sex equality law--a spirit that finds many forms of expression in the opinion's due process analysis. Equality challenges to abortion bans preceded Roe, and will continue in courts and politics long after Dobbs v. Jackson Women's Health Organization. In this Article we discuss our amicus brief in Dobbs, demonstrating that Mississippi's ban on abortions after fifteen weeks violates the Fourteenth Amendment's Equal Protection Clause, and show how its equality-based arguments open up crucial conversations that extend far beyond abortion. Our brief shows how the canonical equal protection cases United States v. Virginia and Nevada Department of Human Resources v. Hibbs extend to the regulation of pregnancy, providing an independent constitutional basis for abortion rights. As we show, abortion bans classify by sex. Equal protection requires the government to justify this discrimination: to explain why it could not employ less restrictive means to achieve its ends, especially when using discriminatory means perpetuates historic forms of group-based harm. Mississippi decided to ban abortion, choosing sex-based and coercive means to protect health and life; at the same time the state consistently refused to enact safety-net policies that offered inclusive, noncoercive means to achieve the same health- and life-protective ends. Our brief asks: could the state have pursued these same life- and healthprotective ends with more inclusive, less coercive strategies? This inquiry has ramifications in courts, in legislatures, and in the court of public opinion. Equal protection focuses the inquiry on how gender, race, and class may distort decisions about protecting life and health, within and outside the abortion context. There are many forms of equal protection argument, and this family of arguments can play a role in congressional and executive enforcement of constitutional rights, in the enforcement of equality provisions of state constitutions, and in ongoing debate about the proper shape of family life in our constitutional democracy. Equal protection may also have the power to forge new coalitions as it asks hard questions about the kinds of laws that protect the health and life of future generations and that enable families to flourish
Common Ownership: Do Managers Really Compete Less?
No full textVol. 39:101 2022This Article addresses an important question in modern antitrust: when large investment funds have holdings across an industry, is competition depressed?
The question of the impact of common ownership on competition has gained much attention as the role of institutional shareholding has grown, with the funds of the three largest management companies holding in aggregate approximately
21% of the shares of a typical S&P 500 firm. It is a source of acute disagreement among scholars and policymakers, with some who believe common ownership does depress competition seeking antitrust law reforms that would significantly constrain how investment funds operate. Neglected in this vigorous debate, however, is a careful analysis of how the persons who in the first instance actually make the decisions that determine an industry’s competitiveness—firm managers—would act differently in the presence of common ownership. In essence, even if the common owners were to pressure firms to compete less, how,
if at all, would that change the structure of incentives within which these managers work
