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State Power and Anticompetitive Conduct
Full text linkStates can and do suppress competition when it harms marginalized communities. For example, states have monopolized prison markets, forcing society’s least powerful to pay high prices for medicine, snacks, and other goods. It is also common for states to organize licensing agencies who can protect incumbent interests by refusing to grant licenses to immigrant entrepreneurs such as African hair braiders, street vendors, and more. From current and historical perspectives, anticompetitive practices have quietly entailed one of the most effective methods of oppressing marginalized people. That said, states are exempted from antitrust review due to federalism, which concerns constitutional power sharing between state and federal bodies. While the Sherman Act lacks express language about state action, the Supreme Court held in Parker v. Brown that antitrust scrutiny would deprive states of their sovereign right to promote public policies via restricting some competition. Key to this ruling is that the threat of elections should incentivize states to suppress competition when the public would benefit. The Court has thus ruled that the Sherman Act does not apply to states. This Article argues that state action immunity was errantly premised on federalism and political accountability. The Supreme Court promoted Parker’s framework on the grounds of elections, yet states encounter incentives to monopolize markets comprised of inmates, immigrants, and others who lack resources, voting rights, or the ability to hold leaders accountable. In fact, antitrust law was founded on the common law of competition, which was exclusively fixated on state action and its likelihood of oppressing society’s least powerful. Due to the importance of historical sources in interpreting modern antitrust law, the dangers of state monopolies are not only engrained in the historical record but also rebut Parker’s rationales of federalism and congressional intent. While antitrust is considered a “colorblind” body of law, this Article seeks to expose how states harm marginalized people as consumers and competitors, resulting in the inequitable distributions of real estate, healthcare, labor, and other necessities—a danger that existed when the English established the common law of competition and that remains true today
Intimate Privacy in a Post-\u3ci\u3eRoe\u3c/i\u3e World
Full text linkNow that the Supreme Court has revoked the constitutional right to abortion, we must reckon with the risks presented by our surveillance economy. Individuals, companies, and governments have access to, and information about, every detail of our intimate lives, including where we go (including a clinic or hospital), whether we have a health condition (including being pregnant), what we search, read, and purchase (including abortion pills), and what we communicate (including via text message or email). That information is being wielded against pregnant individuals, people helping individuals obtain abortions, and healthcare workers. It is being exploited to support criminal and civil liability, to empower domestic abusers, and to fuel harassment. Healthcare workers are using patients’ intimate data against them, undermining the trust necessary for medical care. Also on the line is the trust essential for love and community cohesion. We did not need more reasons to protect intimate privacy; the stakes were clear before the Supreme Court overturned Roe v. Wade. But no matter, the time to act is now. This Article builds on my theory of intimate privacy as a civil right and lays out core commitments that lawmakers should adopt to protect intimate privacy. It highlights steps taken by the Federal Trade Commission and state attorneys general to set norms around the handling of intimate data, and it encourages more of these efforts. Then, it turns to reform proposals, using current federal legislative proposals as a guide and point of comparison
The Gun Industry and the New Anti-Boycott Laws
Full text linkAnti-boycott laws are an emerging trend in our legal system, especially in state legislatures. In the last seven years, more than half the states have adopted laws that sanction, in various ways, firms that boycott the nation of Israel. Even more recently, several states have adopted laws that discourage corporations—especially financial institutions—from adopting environment, social, and governance reform policies. In 2021, Texas and Wyoming adopted sweeping laws that punish banks that do not lend to weapons manufacturers and gun dealers after some of the nation’s largest financial institutions had announced plans to stop lending to the firearm industry. A Texas law requires all government contractors to certify in their contracts that they do not discriminate against the gun industry, thereby debarring financial institutions and other companies from state or municipal contracts if they boycott or divest from the protected industry. Similar laws are pending in other states and in Congress. This is the first law review article to explore, in depth, the anti-boycott laws designed to protect the firearms industry from de-banking and important exceptions or potential legal loopholes in these laws. This Article also discusses the economic impact of such laws as well as their legality, especially in terms of corporate rights to free speech
Should Tort Law Care About Police Officers?
Full text linkShould police officers be able to file tort lawsuits for injuries that they suffer while on duty? In this article, written in response to Professor Sarah L. Swan\u27s The Plaintiff Police, Professors Ellen M. Bublick and Jane R. Bambauer contend that racial equality is not served by complete immunities for civilian misconduct any more than “law and order” is served by complete immunities for police officers who abuse their power. Rather, they argue that the common law has expanded, and should continue to expand, the civil legal rights of wrongfully injured people, including people wrongfully injured while employed as police officers. Beginning with a review of recent appellate opinions in suits filed by police, Bublick and Bambauer outline the types of actions that would be eliminated by a proposed ban on police officer injury suits. They next examine police suits through the popular, if inaccurate, frame that civilians can obtain virtually no civil remedies based on police misconduct. From the baseline of actual suits, Bublick and Bambauer argue that civil enforcement is valuable to hold both civilians and officers accountable for the unjustified harms that they cause to each other
Capitalizing Carbon: The Taxation of Carbon Credits in Voluntary Carbon Markets
No full textThis Article explores the evolving intersection of carbon offset credits, U.S. federal tax law and clean energy tax incentives, emphasizing the complexities faced by businesses in navigating these areas. As carbon offset credits gain prominence in corporate sustainability strategies, their tax treatment remains ambiguous, with companies encountering varying interpretations under sections 162 and 263. The analysis in Part II suggests that carbon offset credit purchases are likely to be generally capitalized, subject to rare exceptions. This conclusion is drawn from notable legal precedents, including Welch v. Helvering, Jenkins v. Commissioner and INDOPCO v. Commissioner. These cases provide insight into how courts may approach the deductibility versus capitalization debate, including especially what constitutes “ordinary” and “necessary” expenses in the context of carbon credits. Historically, and likely in the future as well, these “reputation enhancing” expenditures constitute capital outlays designed to benefit the business over long periods of time. However, in an era where environmental sustainability is prioritized, not only culturally but also explicitly through the Code, outlays resembling a musician’s “reputation preserving” outlays may find a “Swift exception” to traditional capitalization rules. Nevertheless, “expenses” apparently similar in nature in both domestic and foreign contexts are consistently treated as capital outlays, and carbon credits are likely no exception. The Article also examines the role of clean energy tax credits—particularly sections 45Q and 45V—in the carbon offset market. These credits offer significant incentives for carbon capture and hydrogen production but present challenges regarding the stacking of credits, as discussed in Part III. The prohibition on combining section 45Q and 45V credits creates strategic decision points for project developers, impacting the financial feasibility of clean energy initiatives. Finally, Part IV considers the potential shift toward a mandatory federal carbon compliance program in the United States, highlighting the increasing importance of accurate tax reporting and strategic planning. As federal policies continue to evolve, businesses must align their tax strategies with broader environmental and corporate governance goals to navigate this dynamic and challenging landscape effectively
\u3ci\u3ePeña-Rodriguez v. Colorado\u3c/i\u3e and the Racial Animus Exception to the No-Impeachment Rule: Extending and Exception to Suspect Classes that Experience Pervasive Bias in the Jury System
No full textDuring an inquiry into the validity of a verdict, Federal Rule of Evidence 606(b) prohibits jurors from testifying about statements made or incidents that occurred during jury deliberations, including jurors\u27 subjective mental processes used in reaching the verdict. This rule is often called the no-impeachment rule. The no-impeachment rule promotes the finality of verdicts, facilitates free and vibrant discussion by jurors without fear their verdict will be questioned, and ensures that jurors are not harassed by litigants seeking to challenge their verdict. However, in a landmark U.S. Supreme Court case, Pena-Rodriguez v. Colorado, the Court held that a defendant\u27s Sixth Amendment right trumps the no-impeachment rule in one specific circumstance: Post-verdict juror testimony is permitted when a juror\u27s clear statement reveals that the juror\u27s decision to convict was based on racial animus. This racial animus exception to the no-impeachment rule is a necessary safeguard for defendants\u27 Sixth and Fourteenth Amendment rights because of the deep-seated history of racial discrimination within America\u27s criminal justice system. This Note argues for a framework that would also extend exceptions to the no-impeachment rule to suspect classes that experience non-racial biases, but only if there is substantial evidence that the suspect class experiences widespread bias in the jury system. This Note applies this proposed framework to anti-LGBTQ bias because there is sufficient evidence that the LGBTQ community experiences pervasive bias within the jury system. Creating additional exceptions to the no-impeachment rule will not greatly undermine the finality of verdicts or open the jury system up to far more challenges because, like in Pena-Rodriguez, the threshold for its application will be very high
Charles and Kathleen Moore and the Coming Tax Armageddon
No full textThe Supreme Court decided last term, against predictions, that U.S. shareholders could be taxed on the undistributed earnings of their foreign corporation. The Court expressly did not decide the “Armageddon question,” whether a wealth tax or mark-to-market tax would be constitutional. In the coming Armageddon, the Court needs to reverse the error in Pollock v. Farmers’ Loan & Trust Co., which said that the Constitution “prevent[s] an attack upon accumulated property by mere force of numbers.” That is exactly wrong. Apportionment of direct tax in fact was written to reach the wealth of the states using the labor of the population of a state to measure state wealth. The Founders, sitting as Justices in the early Supreme Court, held that if apportionment was not constructive, then the tax was therefore not a “direct tax” for which apportionment was required. The Pollock Court imposed its private, ideological conclusion on words it did not understand, ignorant of the history and rationale for the words. The Supreme Court retreated from its error in Pollock over the next 25 years with the legal fiction that all taxes that came before the Court were excise taxes. The Sixteenth Amendment, allowing an income tax, was in context the last nail in the coffin. Eisner v. Macomber resurrected Pollock from the dead with an inappropriately narrow definition of income, requiring that income be severed from capital. That defines a consumption tax, not an income tax. To consume bread from a loaf, one must slice, break or sever the bread from the loaf. But bread left in the loaf is fine savings, available for future consumption or for an emergency. “Income” includes both consumption and savings. When the appropriate case reaches the Supreme Court, the Court needs to reverse Pollock, and Macomber with it, to allow the Democracy to tax wealth as the Constitution was written to allow
Assisted Outpatient Treatment: A State-by-State Comparative Review
Full text linkAssisted outpatient treatment, otherwise known as preventive outpatient commitment, is rapidly expanding across the United States, aiming to address mental health needs and reduce homelessness, hospital costs, and community violence. Since 2019, fifteen preventive outpatient commitment statutes have been passed or expanded. These statutes, which authorize courts to mandate community treatment for nondangerous individuals with mental illnesses, have evaded close scrutiny, rest on misconceptions, and raise significant constitutional concerns. An analysis of legislative debates, court opinions, and scholarship reveals a fundamental misunderstanding about the prevalence of these laws, which contributes to their speedy passage. Additionally, no analysis exists of these statutes\u27 varying compositions. Consequently, commentators underestimate their potential scope and enforceability. Furthermore, a lack of clarity regarding the elements responsive to states\u27 parens patriae and police power interests hinders accurate legal and policy analyses.
This Article explicates current preventive outpatient commitment statutes to enhance understanding of states\u27 authority to compel community treatment. It seeks to dispel common misconceptions about these statutes, including their prevalence, minimal invasiveness, applicability to only those lacking insight into their condition, and unenforceability through courts\u27 contempt power. It also offers a detailed analysis of the aspects of these statutes most crucial to their justifiability, i.e., criteria related to dangerousness and treatment decision-making incapacity. Such examination is necessary to understand the evolving relationship between states and individuals with mental disorders, discern the goals of compelled treatment statutes, and assess their legality. It is also essential for evaluating the success of these statutes and determining when a state\u27s objectives have been fulfilled such that courts may not renew commitment orders.
This analysis aims to enrich future debates about the authority underpinning these statutes, their ideal composition, and their impact. It also lays the foundation for future projects to examine the constitutionality of these statutes, their efficacy, and their broader justifications
In (Tax) Hindsight: When Should the Tax System Ease Taxpayer Regrets?
Full text linkA brief review of, Emily Cauble, Taxpayers’ Tax Election Regrets, 77 The Tax Law. 77 (2023), that focuses on § 754 elections