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The Politics of Mis-Representation: Rural-Urban Conflict in the Florida Legislature (William C. Havard & Loren B. Beth, 1962)
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The Theory, Law, and Policy of Soviet Treaties (Jan F. Triska & Robert M. Slusser, 1962)
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A Systemic Perspective for U.S. Open Banking: Ensuring Participation, Access, and Stability
Full text linkFinally, open banking is on a path to be established in the United States after more than a decade since the laying of its legislative foundation in the Dodd-Frank Act. With the issuance of an advance notice of proposed rulemaking by the Consumer Financial Protection Bureau, and the Executive Order on Promoting Competition in the American Economy, regulatory momentum is building. However, there is much work to be done in the legal design of rights, responsibilities, and relationships under open banking in the U.S. before it can empower consumers to derive value from their banking data. Fundamental issues need to be addressed including what data is covered, in what form it is provided, how the holding and use of the information is controlled, the security and accuracy of the shared data, and the transparency of the data sharing. A broader perspective of open banking as a system will also be necessary to ensure the participation of banks, data recipients, intermediaries and other service providers needed to deliver wider economic outcomes relating to competition, innovation, inclusion, and consumer protection. This Article explains a systemic perspective of open banking as a network of interconnected and interdependent participants sharing valuable customer data and analyses how access and stability need to be balanced in open banking’s legal design. It compares the legal features which manage participation in the established open banking systems of Australia and the United Kingdom and evaluates them against equivalent legal features in banking payment systems, which are also networks for the communication of valuable information. Through this comparison and evaluation, this Article finds that the United Kingdom (U.K.) open banking offers a lower level of regulation of indirect participation and outsourcing than Australian open banking and more limited rights to suspend participation and less clear protection of the value in customer data in participant default and insolvency. It also shows that the design of access and stability under Australian open banking is more aligned with banking payment systems in the management of potentially systemic risks. By demonstrating how differing legal approaches to balancing access and stability in open banking can affect the participation on which open banking’s success depends, this analysis will be critical for the design of America’s open banking system
Taxation at a Distance
Full text linkWealthy Americans escape the income and estate taxes by holding assets at a legal remove. This general tax avoidance strategy—holding wealth at a distance —takes several forms, but the most powerful of all is the use of life insurance. Tax law has come to afford special treatment to life insurance due to some combination of reasoned policy, industry lobbying, and illogical application of existing tax rules and judicial anti-abuse doctrines. Courts have only recently begun to push back against taxpayers\u27 use of life insurance as a tax-free brokerage account, but the judicial crackdown is fatally flawed. This is because it rests on what I call control doctrines, or arguments that taxpayers should only become liable for paying taxes on their life insurance investments when they exercise direct, personal control over those investments. But I argue that taxpayers can benefit from such arrangements without exercising any control, and that economic benefit is a more appropriate basis for tax liability. I show that applying an economic benefit principle would produce simple, administrable rules superior to the control-based status quo in both the income tax and estate tax settings. My argument demonstrates that tax law must reject extreme legal formalism—such as the legal distance created through life insurance and trusts—in order to meet the challenge of high-wealth exceptionalism
The Shifting Economic Allegiance of Capital Gains
Full text linkTechnological advances and the digitalization of the global economy have created an economic environment beyond the imagination of the original designers of the international tax system. Much scholarly attention has been paid to the question of how these economic transformations should affect which country is able to tax a multinational company’s income. But which country should be able to tax capital gains income from the sale of that company’s shares is an important and overlooked question. This Article answers this question. It concludes that taxing authority over capital gains income must be reallocated to the countries in which companies conduct business. In our modern, digitalized economy, this reallocation is necessary to align international sourcing rules with international tax law’s underlying principles. While this Article is a primarily a proof of concept, it also seeks to begin a conversation about ways to implement this reallocation and describes one possible approach: an annual mark-to market tax at the company level on increases in company value apportioned amongst source countries based on a set formula
Business-Entity Charitable Workarounds
Full text linkIn 2017 Congress enacted a controversial $10,000 cap on individual deductions for state and local taxes. States initially responded by enacting charitable workarounds which invited individual taxpayers to convert capped § 164 deductions for state income taxes into uncapped § 170 deductions for contributions to charitable organizations in exchange for state income tax credits that reduced or eliminated state tax liability. Final regulations under § 170 shut down the tax shelter by treating state tax credits received in exchange for charitable payments as a quid pro quo, reducing or eliminating any charitable deduction. In 2020, acceding to pressure from business groups and school choice advocates, the outgoing Trump administration blessed a functionally equivalent business-entity charitable workaround which circumvents the SALT cap by exploiting discontinuities under §§ 162, 164 and 170. Passthrough owners obtain an ordinary § 162 business deduction for entity-level payments to § 170 organizations, coupled with passthrough of state tax credits that reduce or eliminate the owners’ state income tax liability. The Treasury can and should close this loophole by requiring a separate statement, subject to the § 164(b)(6) limit, of entity-level deductions attributable to payments to charitable organizations that generate state income tax credits. Whether or not Congress retains the SALT cap, passthrough owners should not be permitted to convert nondeductible individual state income taxes into fully deductible business expenses
Tech Giant Exclusion
Full text linkThere is no topic in regulatory policy that is more pressing and more controversial than what to do about the tech giants—Google, Facebook, Amazon, and Apple. Critics claim that these powerful platforms crush competitors, distort the political process, and elude antitrust law because the law cares only about consumer prices. The only solution, critics argue, is to break them up. The tech giants have indeed engaged in anticompetitive conduct. They have excluded rivals selling products on their platforms by demoting them in search results, copying their products, or refusing to deal with them. While these tactics have harmed consumers, they have never been successfully challenged because they have rarely, if ever, created monopoly power or a dangerous probability of monopoly power, which the Sherman Act requires. This requirement should be eliminated. The tech giants should not be broken up. Splitting them into smaller versions of themselves would result in higher prices or lower quality. Preventing them from selling their own products on their platforms would deprive consumers of choices they value. Nor should the goals of antitrust law be changed. The fundamental aim of antitrust law is to protect consumers and vulnerable suppliers—such as workers—from anticompetitive conduct. If courts also had to focus on preserving small business and limiting the political influence of large firms, the goals of antitrust would conflict. Courts would have no objective way of resolving the conflict, the rule of law would suffer, and consumers and workers would be hurt. Congress should instead amend the Sherman Act to prohibit exclusionary conduct that significantly reduces competition, whether or not it results in actual or probable monopoly power. To avoid chilling procompetitive conduct, the change should apply only to the tech giants and should contain strict proof requirements. This careful expansion would make it much easier to deter tech giant exclusion that harms consumers or workers