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The Role of Light Plagiarism in Legal Writing , from a Recent Practitioner\u27s Perspective
No full textBecause practitioners are pressured to complete their tasks as quickly and efficiently as possible, lawyers regularly use documents previously drafted by other lawyers as a starting point for their drafting. Law students may be surprised to learn that in the modern practice of law, plagiarism is so widely accepted and encouraged. This article proposes several reasons why Legal Writing Professors should consider addressing that fact by discussing the process by which many lawyers draft documents in the real-world practice of law today.
First, the rules against plagiarism do not relate to the real-world practice of law. Unlike law students, who are graded on their own individual work, lawyers often collaborate on their written work. Moreover, plagiarism serves an important purpose in the practice of law: it allows lawyers to deliver high quality work as efficiently as possible, which serves their clients’ financial interests. And, given the increased usage of AI in practice, plagiarism will continue to play a role in the modern practice of law.
Second, all lawyers can benefit from engaging in a practice suggested by this article: “light plagiarism.” While engaging in “light plagiarism” will allow new lawyers to more quickly refine their research and writing skills and allow them to see that good legal writing comes in many forms and styles, more experienced lawyers who engage in “light plagiarism” will benefit by being able to complete more tasks in less time.
Finally, the article proposes five steps that should be performed to effectively engage in “light plagiarism.
The Enforcement Act of 1870, Federal Jurisdiction Over Election Contests, and the Political Question Doctrine
No full textA lingering provision of a major Reconstruction Era law, the Enforcement Act of 1870, 28 U.S.C. § 1344, grants federal courts jurisdiction over election contests arising from alleged Fifteenth Amendment violations, except for the positions of presidential elector, member of Congress, and state legislator. Some courts have erroneously construed this provision as categorically denying the federal judiciary subject-matter jurisdiction over any constitutional challenges, including by voters, to the outcomes of presidential, congressional, or state legislative elections. This pernicious line of authority periodically re-emerges to wrongly preclude litigants from attempting to vindicate their right to vote in federal court. More broadly, § 1344 points to a fundamental indeterminacy at the heart of the electoral process. The Reconstruction Era Congress sought to preclude federal courts from adjudicating constitutional challenges concerning congressional and presidential elections because the Constitution grants the chambers of Congress themselves the authority to resolve them. Yet subsequent grants of subject-matter jurisdiction allow federal courts to adjudicate such disputes. Thus, different branches of the federal government may come to different conclusions as to whether the Constitution requires or forbids certain votes to be counted. Ultimately, it appears that the Constitution enshrines departmentalism, rather than judicial supremacy, in the realm of federal elections and voting rights. When federal courts conclude that the Constitution either requires or forbids the counting of certain votes in congressional or presidential elections, those rulings are not binding on the chambers of Congress. Furthermore, the political question doctrine acts as a modern replacement for § 1344\u27s jurisdictional restrictions with regard to federal elections. Once the chambers of Congress have initiated the process of exercising their constitutional prerogative to determine an election\u27s outcome, the federal judiciary should decline to get involved in all but the most extreme circumstances
The Decline of \u3ci\u3eChevron\u3c/i\u3e, the Rise of \u3ci\u3eLoper Bright\u3c/i\u3e and the Shifting Sands of Tax Law
No full textThe repeal of the Chevron deference doctrine has triggered what some may argue is a seismic shift in how tax law may be interpreted and applied, which may have far-reaching implications for taxpayers, the Internal Revenue Service and the federal government. This Article examines the evolving landscape of U.S. federal tax law in the wake of the Loper Bright decision, specifically focusing on the tax and economic consequences for key tax areas such as the General Anti-Abuse Rule and the complicated foreign tax credit and transfer pricing regimes, as well as the rules that characterize financial instruments or equity investments and the technical measurement and accrual of interest and OID rules. By removing the automatic deference previously afforded to the federal agencies in general and the IRS in taxation, courts may now be open to take a far more active role in interpreting ambiguous tax statutes, which could introduce further uncertainty on one hand, but also perhaps new opportunities for taxpayers. This Article argues that the repeal of Chevron deference could potentially result in inconsistent rulings, heightened litigation and a redefined balance of power between the judiciary and regulatory agencies. As the U.S. administrative legal system enters this new era, the U.S. federal tax system may follow, and all parties involved must navigate an increasingly unpredictable legal environment, with long-term consequences for innovation, compliance and tax strategy
A Trauma-Informed Analysis of Legal Intervention in Cases of Child Emotional Maltreatment
No full textChild emotional maltreatment (CEM) has been recognized as a widespread, serious social problem that is linked to a variety of adverse physical and mental effects that follow affected children into adulthood. The justice system has responded to calls to action by mental health professionals, and for more than two decades, federal and state laws have included child emotional maltreatment on the list of caretaker behaviors that can trigger child protection action. Despite the potential for meaningful action, recent data shows that occurrence rates of CEM are quite high, while rates of official reporting and intervention remain low. This Article examines possible explanations for the disconnect between good intentions and successful remedies and concludes that statutory wording, inhibitions against reporting child maltreatment in general, and social attitudes about family privacy all play a role in the failure of current legal approaches. However, this Article goes on to argue that a trauma-informed analysis of the harm resulting from CEM shows that current policies, such as child removal and threatened or actual termination of parental rights, cannot work because they exacerbate the traumatic harm of CEM. Instead, resources should be used to deliver services that support families and increase both caretaker and child resilience
The People\u27s War and Its Application to China\u27s Legal Framework for Cybersecurity
Full text linkThis Article addresses the growing threat of cyberattacks on critical infrastructure by examining China’s response, particularly through its Cybersecurity Law (CSL), against the backdrop of global cybersecurity laws like the General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA). The CSL, enacted in 2016, is analyzed within the context of Chinese military doctrine, specifically, the concept of the People’s War introduced by Mao Zedong. Part I traces the historical evolution of the People’s War, Part II explores its continued relevance in cyberspace, and Part III discusses how the People’s War elements manifest in the CSL and related regulations. This Article argues that the CSL focuses on elevating China’s defensive cyber capabilities across governmental and consumer sectors, diverging from the more consumer-privacy-centric approach of other global cybersecurity laws. Part IV delves into the challenges the United States faces in responding to the CSL and suggests potential paths forward to bridge strategic divides between the two countries in the realm of cyberspace. The introduction vividly portrays real-world scenarios of cyberattacks impacting critical infrastructure, setting the stage for the exploration of China’s unique response in the subsequent sections
Safe Harbor Regimes in Transfer Pricing—An African Perspective
Full text linkThe transfer pricing methods established by the transfer pricing rules and practices of many countries (generally modelled after the OECD Transfer Pricing Guidelines) are not only complex to implement, but also fraught with challenges such as the lack of availability of comparables for benchmarking purposes, low accessibility of databases and the failed capacity of tax authorities to implement them. For tax authorities in African countries, these challenges are further amplified, for example, by lack of resources, especially human and capital, and a shortage of experience in applying transfer pricing rules. As a result of these challenges, achieving arm’s length prices for transactions between related entities has posed a significant burden and cost to both taxpayers and tax authorities. The OECD and the G20 initiated the Base Erosion and Profit Shifting (BEPS) project to ameliorate some of the challenges listed above and to address the erosion of tax bases and shifting of profit to low-tax jurisdictions—challenges ultimately tied to the limitations of the arm’s-length standard and application of transfer pricing methodologies. However, tax authorities in some jurisdictions already apply safe harbors and other simplified measures to mitigate the challenges of applying transfer pricing rules and practices. These measures reduce the need for taxpayers to prepare detailed transfer pricing documentation in justifying the arm’s-length price fixed for goods and services transferred among related entities. They also remove the need for tax authorities to audit the books of taxpayers where they act within approved margins. In some cases, they exempt taxpayers from applying transfer pricing rules to related-party transactions. Historically, the OECD discouraged the use of safe harbors by tax jurisdictions, claiming that they conflict with the arm’s length standard. In recent times, the OECD has changed its views on the use of safe harbors. The Statement on a Two-Pillar Solution to Address the Tax Challenges Arising from the Digitalization of the Economy recommends the use of safe harbors, including those in the GloBE rules, in determining marketing and distribution profits. Given the positive recommendation by the OECD on the use of safe harbors in recent times, this Article analyzes the adoption and application of safe harbor regimes by certain countries and discusses how they should be designed. It recommends the cautious adoption and application of safe harbor regimes by tax authorities in African countries to achieve increased revenue collection, tax efficiency, certainty, simplicity and convenience, and to circumvent the complicated comparability analysis
Designing a Billionaires\u27 Tax
Full text linkWith ProPublica’s dramatic revelation in 2021 of the low “true tax rates” of America’s billionaires serving as a catalyst, the exclusion of unrealized gains from the base of the federal income tax has been challenged to an extent unprecedented in the century-plus history of the tax. In late 2021, a proposal by Senate Finance Committee Chair Ron Wyden (D, OR) to tax billionaires’ unrealized gains in tradable assets might have become law, but for the opposition of Senator Joe Manchin (D, WV). And in early 2022, the Treasury Department of President Joe Biden included a minimum tax on the unrealized gains of the ultrarich in its tax reform proposals. A narrower reform, taxing billionaires who borrow against unrealized appreciation to finance lavish consumption expenditures, has also been urged. All three of these proposed reforms—but especially the first two—would transform the fundamental character of the income tax as applied to the wealthiest Americans. This Article describes the three approaches, considers design challenges under each and evaluates their relative merits
Book Review: \u3ci\u3eA Tax Giant\u27s View from Atop the Beanstalk\u3c/i\u3e
Full text linkStanley S. Surrey, A Half-Century with the Internal Revenue Code: The Memoirs of Stanley S. Surrey. Edited by Lawrence A. Zelenak & Ajay K. Mehrotra. Durham, N.C.: Carolina Academic Press. 2022. Pp. lvii, 360
Standing in the Shadows of the New Fourth Amendment Traditionalism
Full text linkIn the past decade, the Supreme Court of the United States has revived an originalist, property-based approach to evaluating Fourth Amendment problems. The Court has used this approach to broaden its understanding of the sorts of governmental conduct that qualify as Fourth Amendment searches. So far, however, neither the Court nor scholars have offered a comprehensive assessment of the implications of this new Fourth Amendment traditionalism for what is known as Fourth Amendment standing, a doctrine reflecting the Court’s longstanding determination that only one whose own Fourth Amendment interests are implicated by government conduct is entitled to raise a Fourth Amendment challenge to such conduct. This Article, which provides the first sustained treatment of the issue, concludes that the logical consequence of the new traditionalism will be a significant expansion of the class of people entitled to make Fourth Amendment claims, including in cases involving the kinds of quotidian, physical searches and seizures that have long been the focus of complaints about law enforcement abuse of vulnerable communities
Adversary Democratic Due Process
Full text linkLegal minds have long quarreled over the true meaning of the Due Process Clauses of the Fifth and Fourteenth Amendments, but little consensus has emerged as to their scope and application. Despite the doctrinal significance and ubiquity of due process, scholars have devoted troublingly little attention to the underlying premises or “DNA” of this fundamental constitutional right. Consequently, litigants’ claims to adjudicatory procedures have been consistently undervalued on the myopic utilitarian scale of costs and benefits that has imposed a chokehold on current doctrine, and no viable alternative approach has emerged to take its place. This Article seeks to fill that intellectual void and provide a superior model of procedural due process, one that grounds it in the democratic theory inherent to American constitutionalism—what this Article terms “liberal adversary democracy.” Liberal adversary democracy is an outgrowth of the Framers’ belief that, in the face of an increasingly divisive and diverse polity, defensively invoking conflict, mistrust of others, and fear of unchecked power is the best (if not the only) way to safeguard liberal values of individual development, growth, and dignity. This Article demonstrates that procedural due process is a product of liberal adversary democracy, providing one of the most foundational defensive guarantees that both protects individual liberty and legitimizes democracy itself. To serve its democratic function, procedural due process must be imbued with the protective skepticism of liberal adversary democracy. This adversary democratic model of due process would revolutionize the present under-protective due process jurisprudence of today and provide clear normative guidance for all future procedural due process inquiries