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World Tax Policy in the World Tax Polity? An Event History Analysis of OECD/G20 BEPS Inclusive Framework Membership
No full textVol. 47: 199The last decade has seen the emergence of a new global tax order spearheaded by the OECD and G20 and characterized by increased multilateral consensus and cooperation. This new order appears to reflect the emergence of a new "world tax polity" with shared structures, practices, and norms, all of which have been shaped through the work of the OECD, G20, and other global actors. But what are the pathways by which this new world tax polity has emerged?
Using event history regression methods, this Article investigates this question by studying membership in the OECD/G20 BEPS Inclusive Framework, a multilateral tax agreement among 141 member countries that is a centerpiece of the new tax order. Sociological scholarship regarding world polity emergence posits that membership in this Inclusive Framework could have been driven by normative, coercive, or mimetic processes. Of these possibilities, this Article finds that Inclusive Framework membership seems to have proliferated through a combination of normative and coercion-based pathways. Specifically, acculturation through prior involvement in certain OECD tax initiatives and inclusion in contemporaneous European Union tax haven listing processes (a form of naming and shaming) were associated with a significantly higher hazard of membership. By
contrast, imitation of other countries did not appear to be a significant pathway.
These findings highlight how international organizations and blocs have worked in concert to shape international tax policy and global tax consensus. More broadly, they show how world polity proliferation as a result of international organizations' leadership can be amplified by parallel pressures and processes initiated by other powerful blocs. These findings carry important implications for the substantive content of global tax policy, where such policy is made, and its chances of success
SUBMISSION FOR THE JOSEPH A. CHUBB COMPETITION PRIZE
No full textThe Joseph A. Chubb Competition Prize
D. Kysar, R. Harrison, N. Messing, C. Silver
For excellence in legal draftsmanship and not legal
scholarship. Two prizes to be awarded: First and Second.This writing sample is an assignment I submitted to Yale’s Supreme Court Advocacy Clinic.
I was asked to review the certiorari petition and corresponding files in State of Oklahoma v. Robert Eric
Wadkins, and then to draft a mock “cert pool memo.” The case addressed what requirements a
criminal defendant must satisfy to qualify as an “Indian” for purposes of federal criminal law. I
recommended the “Court” deny the petition. The assignment did not require formal Bluebook
citations, but I have added them for purposes of this submission
Unenforceable Securitization Contracts
No full textA "portfolio" here is a bundled set of contracts. In this Article, we address a commercially important example, where a local bank finances home purchases. The bank bundles the resultant contracts the mortgage-backed securities (MBS)-into a portfolio, which it then sells to a firm, denoted an "originator." The originator buys portfolios from several local banks and sells the portfolios to a large bank, which markets the portfolios to public investment vehicles, such as trusts. "Portfolio contracts" govern each of these
sales.
We show that the initial portfolio contract between the local bank and originator is unenforceable for two reasons. First, in contrast to goods sellers, who warrant that the goods perform, the local bank warranted that it created each of the constituent MBS in the portfolio according to good underwriting practice. Hence, while breach is observable to the goods buyer (who can see that the goods did not perform), the portfolio buyer cannot observe breach because efficiently and inefficiently created MBS are facially identical. Thus, an MBS buyer would have had to reconstruct how the local bank created particular loans in order to establish a warranty breach. Second, the goods in a bundle usually are homogenous, so the buyer can prove damages by extrapolating the loss on sampled goods to the whole. In contrast, the MBS in a portfolio usually are heterogeneous: the loans have different face values, and the individual obligors have paid different sums before defaulting. Hence, the originator must prove damages contract by contract. For these reasons, it would have been too costly for an originator to prove breach and damages.
The originator, however, sold the MBS portfolio to the large bank, remaking the unenforceable local-bank warranties that had been made to them. The large bank then remade the warranties to the public-investment vehicles. These vehicles were even less able than the originators to enforce the best practice warranties. Hence, no one could and no one did enforce an MBSportfolio
contract as it was written.
Anticipating this result, the originating local banks reduced pre-loan screening of potential borrowers. This increased the number of marginal borrowers with two results: (i) many borrowers defaulted because they could not pay, and (ii) some borrowers who could pay defaulted strategically because they believed that the large number of defaulters overwhelmed a portfolio buyer's capacity to pursue them.
Anecdotal data indicate that market agents today continue to sell MBS portfolios under similar unenforceable contracts. A material fall in housing prices thus could yield macroeconomic consequences similar to those experienced in the Great Recession
Presidential Transitions: The New Rules
No full textVolume 39-3The Trump Administration was unusually aggressive in using an obscure set of tools to undo the Obama Administration’s regulatory legacy: Congressional Review Act disapprovals, requests that courts hold in abeyance pending cases challenging Obama-era regulations, and suspensions of final regulations. These actions could be seen as part of the Trump Administration norm-breaking approach to regulatory policy, under which it also provided shoddy justifications for its actions, ignored statutory commands, and failed to comply with procedural requirements. There has been a general assumption that the norm-breaking was a result of the Trump Administration’s lack of respect for the rule of law and that it would subside when a new administration took office.
This Article challenges this assumption, showing that the Trump-era toolkit on rollbacks has now also been used aggressively—in some cases more aggressively—by the Biden Administration. Actions that might have been seen as an aberration four years ago should now be regarded as integral components of the administrative state.
In a 2019 Article describing the Trump Administration’s aggressive rollback tools, we predicted that the nature of the presidency would change in significant ways as a result. A one-term president will likely not be able to implement much regulatory policy that is durable. And to do so, a president has a much shorter period during which regulations are likely to be protected from quick undoing by a successor of the opposite party, from roughly three-and-a-half years to about two years. The impact of this trend is particularly significant because, during the current era of congressional gridlock, presidents rely on regulations as the primary way in which to implement their domestic policy programs. In this Article, we provide new evidence from the Biden Administration showing that these changes are here to stay
CONSUMER LAW AS AN AXIS OF ECONOMIC INEQUALITY
No full textThis is an edited transcript of a conversation held to introduce the Symposium that this special issue now publishes. The editing aims to promote clarity without abandoning the informal, free-flowing, and speculative quality of the original conversation. The published re-creation also seeks to preserve the full set of observations made in the original conversation rather than to filter or shape them to accommodate all the authors' views. We aspire, throughout our remarks, to raise questions and identify possibilities for further research rather than to report confident conclusions
Credit Nation and the Reconfiguration of Early American and Imperial History
No full textVol. 33:2Claire Priest’s Credit Nation is a remarkably innovative piece of scholarship. In this book Priest demonstrates that anyone seriously interested in the emergence of “capitalism” in America needs to start by studying the law and its institutions in the colonial era. It was in the colonial era, Priest shows, that a distinctive version of property law emerged, one that in the vast majority of situations prioritized credit and liquidity over the security of property. “The ease of access to credit” established in the colonial era, Priest argues, “was key to the explosive growth of capitalism in nineteenth-century America.” Certainly, as she shows, the passage of the Debt Recovery Act of 1732 was followed by a period “of great colonial economic expansion, driven by credit” in the 1740s.
While my colleagues have emphasized Priest’s seminal contributions with respect to legal and economic history, I wanted to draw attention to the profound implications of Priest’s work for colonial and imperial history. In essence, I am suggesting appendixes to Chapter 9 that would interpret the significance of Priest’s findings for still more audiences
The Norm Shift Theory of Punishment.
No full textThe philosophy of punishment’s focus on the question of justification has left the question of definition neglected. This article explains why there is a need for necessary and sufficient conditions for punishment and offers a new account. Under the theory proposed, to inflict a punishment is to make fewer things permissible for another to do. Since not every such restriction is punishment, an account is offered of the additional conditions needing to be met. One implication of the resulting theory is that some prominent cases in which the question of definition needed to be answered were wrongly decided
Jurisdictional Problems, Comity Solutions
No full textAmerican choice of law is today portrayed as a story of how a more modern andfunctionalist methodology came to overthrow the long-dominant territorial system. Against this background, the situs rule-the territorial rule requiring that all property-related issues be governed by the law of the jurisdiction in which the property is located-is seen as an unusual straggler of a nowdel) unked theory. Central to this narrative is the idea that the vested rights theory, which was embraced by the Restatement (First) of Conflict Of Laws and assumed away the possibility for overlapping jurisdictions, represented "traditional" choice of law, going back to Justice Joseph Story, the father of American conflicts law. This is the perspective adopted by the now-in-the-works Restatement (Third), which aims to usher in a new era for American conflict of laws by cutting out atl vestiges of the traditional model-the situs rule included. But this narrative, while broadly held, is wrong. It is a mistake to associate choice of law during the early Republic with an early twentieth-century model of territorialism. In this Essay, we explain that the early American choice-of-law model, as described by Justice Story, was not territorial but rather intensely functional, with its prime focus being resolving the uncertainty created by the constitutional law governing the limits of personal jurisdiction and the recognition of sister-state judgments. In this context, the persistence of the sims rule appears to be not an anachronism but rather an indication that "modern" choice-of-law theories misunderstand the forces shaping conflict-of-laws doctrine today. Using the situs rule as a window into the.foundations of choice of law. this Essay thus calls into question the standard narrative underlying contemporary choice-of-law literature and challenges the approach of the proposed Restatement (Third)
Agency Costs, Corporate Governance, and the American Labor Union
No full textAcute agency costs exist in unions as they do in other complex organizations. Specifically, union officials are imperfect representatives of the rank-and-file workers they ostensibly represent. Yet far less attention has been paid to addressing agency costs in the context of unions than in the context of public corporations, where the separation of share ownership and managerial control long has been the subject of intense scrutiny by academics and policymakers. By contrast, concrete suggestions for confronting agency problems in unions on the ground are few. This Article posits that unions would be more successful in attracting new members and in securing benefits for existing members if unions could reduce agency costs. Workers who think that unions are corrupt and incapable of faithfully representing their interests in the workplace rationally will eschew union membership. The lack of focus on agency costs in the union context appears to be based on ideological and political considerations that conflate the interests of workers with the interests of union officials. But the interests of workers and union officials diverge in significant ways. Workers are concerned with job security, wages, and working conditions, and union officials are concerned with maximizing the private benefits of their office, often at the expense of workers
Eradicating Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish.
No full textThe article offers information related to Bush-Leaguers teed up several cases based on a seemingly plausible but ultimately preposterous constitutional theory that had won the support of three notable justices back in 2000. Topics discussed includes Article II that permits states to use its "legislature", also errors and evils of Bush v. Gore that went far beyond the Independent State Legislature (ISL) ideas at the heart of the Rehnquist-Scalia Thomas concurrence