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Beyond Blinders and Boomerangs: Assessing State Business Taxation
Get PDFKarl A. Frieden’s article, “Wearing Blinders in the Debate Over Business’s ‘Fair Share’ of State Taxes” and his subsequent article, “The Boomerang Effect of the Business ‘Fair Share’ Tax Debate,” jointly contend that progressive calls to strengthen state corporate income taxes (CITs) are misguided because businesses allegedly overpay certain other state and local taxes. This essay argues that, while Frieden does raise some valid points about the efficiency of specific tax design choices, his core argument fundamentally misconstrues the central issues: the ultimate incidence of business taxes, the pursuit of equity and efficiency, and the importance of combating harmful tax avoidance. His approach suffers from what might be termed the “incidence fallacy,” and it relies on a straw man representation of progressive arguments, especially those of the group he labels “BEMS” (Dan R. Bucks, Peter D. Enrich, Michael Mazerov, and Darien Shanske)
The SEC, Fraud, and Cryptocurrencies
Get PDFThe SEC’s Strategic Plan for Fiscal Years 2022–2026 is focused on the impact of the rapidly developing rate of change in new technologies that provide for markets to be more interconnected and interdependent than ever. Because Congress has yet to give the SEC, or any other agency, express authority to regulate cryptocurrency, the SEC has taken a regulation-by-enforcement approach. The SEC’s recent enforcement efforts relating to crypto asset securities were substantial, with enforcement actions addressing a range of alleged misconduct in the crypto asset securities space, including billion-dollar crypto fraud schemes; unregistered crypto asset offerings, platforms, and intermediaries; and illegal celebrity touting. However, with the Supreme Court overturning the Chevron doctrine, thereby limiting agency discretion, enforcement actions may be more tenuous for the SEC moving forward. This Article argues that Congress should expressly authorize the SEC to regulate cryptocurrencies as securities in a manner that will pass the scrutiny of courts. This is especially important in light of Jarkesy, which limits the SEC’s ability to test any new rules through in-house enforcement actions, because this case requires that any agency action that seeks civil money penalties for causes of action ground in the common law, like fraud, must be heard by an Article III court and conform with the defendant’s Seventh Amendment right to a jury trial. Without clear legislative guidance, this Article suggests that the SEC will have to continue its regulation by enforcement scheme, leading to inconsistent decisions and, ultimately, some crypto fraudsters getting away
The Clobes Conundrum: Why Muldrow Should Not Apply to Hostile Work Environment Claims and How the Eighth Circuit Got It Right
Get PDFIn 2024, the Supreme Court held that an employee does not have to prove material harm to prevail on a discrimination claim under Title VII. Because hostile work environment claims also derive from Title VII, courts and litigants are currently grappling with whether this ruling upends the long-standing “severe or pervasive” doctrine. This Note argues that it does not. Passed in 1964, Title VII of the Civil Rights Act makes it illegal for “an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” This provision of Title VII is commonly known as the disparate treatment provision. Beginning in the 1970s, federal courts developed various analytical frameworks for evaluating discrimination claims, some of which have not accurately represented the statute’s text. One such doctrine is the “materially adverse” requirement, which provides that a plaintiff must show that their discrimination resulted from a sufficiently adverse action from their employer. Many federal courts applied this doctrine for decades. But in the recent case of Muldrow v. City of St. Louis, Missouri, the Supreme Court held that, by its terms, Title VII does not contain a materiality requirement, nor any other “heightened bar.” To bring a discrimination claim under the Muldrow approach, a plaintiff need only show “some harm respecting an identifiable term or condition of employmen
Church Autonomy, Textualism, and Originalism: SCOTUS\u27s Use of History to Give Definition to Church Autonomy Doctrine
No full textChurch autonomy is a First Amendment doctrine altogether distinct from the more familiar causes of action brought under the Establishment Clause and the Free Exercise Clause. The principle of church autonomy was first recognized by the Supreme Court of the United States in the post-Civil War case Watson v. Jones, holding that civil courts must not be drawn into resolving religious questions or settling disputes over church polity. And early this century, in the unanimous decision Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the theory of church autonomy took on its most fully developed form as a constitutional immunity from government regulation where it “interferes with the internal governance of the church.”
While the Supreme Court’s general language concerning the scope of this immunity provides helpful starting points, more systemization is needed to solve the inevitable disputes over fine points and close cases. The place to begin is to identify the full subject-matter range of the Court’s caselaw. In such a survey, church autonomy sets apart five individual domains: the resolution of religious questions or disputes; a church’s choice of polity; the administration of rituals and access to sacred rooms; the terms of employment of clergy and other ministers; and the admission, discipline, and dismissal of church members.
The Hosanna-Tabor Court went on to hold that further refinements concerning the package of lawsuits that fall into one of these zones of church autonomy are to be found by reference to the nation’s founding. In following this interpretive rule, the scope of church autonomy is defined by events where the founders spurned federal authority by refusing to become engaged with the internal operations of a church. This makes sense because all thirteen states in rebellion had been British colonies, and the Church of England was the archetypical religious establishment. As a loyal arm of the Crown, the Church of England’s establishmentarian model was widely disdained by American patriots.
The final part of this Article follows the interpretive rule in Hosanna-Tabor by cataloguing events in which prominent individuals, in their roles as continental and later federal officials, declined to exercise authority in circumstances that defined the domains of church autonomy. These events, many little known, include a request by New York delegates to have the Continental Congress alter the Anglican Book of Common Prayer; a French proposal forwarded to the Confederation Congress to sanction a Catholic bishopric in America; a request—later waylaid—to that same Congress to approve the opening of a Catholic seminary; and multiple refusals by the Jefferson Administration to get involved in ecclesial appointments and other quarrels internal to the Catholic Church in the Louisiana Territory. These examples and others give historical underwriting to church autonomy theory as grounded in the actions of federal officials in the early republic
Good Language for Dispute Resolution Bots and Humanoids
No full textIn developing the AI tool, the RPS Negotiation and Mediation Coach, I had to give it strict instructions to use certain terms and avoid others so that it doesn’t use lots of problematic dispute resolution jargon on the internet. This short article lists those terms.
The article points out that, just like bots, humanoids need to be trained. It is especially important to teach good dispute resolution language to law professor, law student, and practitioner units. Many of these humanoids are stuck on defective codings such as “facilitative” and “evaluative” mediation, which are like contagious malware. Humanoids generally can “learn” and even re-program themselves. This article argues that it will take a concerted anti-virus campaign to keep problematic code from dominating dispute resolution algorithms in coming years
Choosing to Use Good Language in the ADR Field
No full textOn October 30, 2024, Debra Berman posted a message on a listserv encouraging colleagues to drop the word “alternative” from “ADR.” Her post quickly prompted 24 responses. This article summarizes the listserv discussion about the term “ADR,” and demonstrates serious misconceptions embodied in popular concepts of “BATNA” and “facilitative” and “evaluative” mediation as well as other problematic language that we frequently use.
Language is a shared resource that can enable people to understand each other accurately and to improve our ideas and techniques. This article describes the many ways that language has huge effects on people’s thoughts and actions, and it identifies criteria for good language.
Academics, trainers, writers, and organizational leaders in our field, among others, are important thought leaders, and our language can have major effects on others’ thoughts and actions. As thought leaders, we have the opportunity – and responsibility – to be conscious and intentional about the language we use.
Unfortunately, the dispute resolution community uses many abstract terms that are confusing, especially for people who aren’t in our field. Our jargon also creates and reinforces divisions between colleagues who identify with different schools of thought.
This article suggests how we can improve our language, individually and collectively. We each have the freedom to choose the language we use in our teaching and writing. Collectively, we can continue to discuss these issues on the listserv and conduct a project to develop lists of suggested terms for key concepts as well as terms to avoid.
The reaction to Debra’s post suggests that our community is concerned about our language, which truly is a shared resource. This may be a good time to revitalize our language to fit current realities and ideas
Thinking Like Mediators About the Future of AI
No full textSome public discourse about artificial intelligence (AI) reflects the uncertainty and tension typical of high-stakes conflicts, where differing perceptions and strong emotions shape how people respond to change. This short essay suggests that dispute resolution professionals are well-positioned to apply our tools to this emerging and complex issue, though we don’t always do so.
The essay calls for a balanced analysis of AI’s risks and benefits, drawing on familiar dispute resolution practices like careful consideration of situations, interests, and options. It highlights the differences between individual and societal impacts of AI use on the environment and education. It encourages the kind of reflection and dialogue that dispute resolution experts generally recommend
Unconstitutional “Detours”
Get PDFThere is no more important context to have clear Fourth Amendment search and seizure limitations than the traffic stop. “Police pull over more than 50,000 drivers on a typical day,” resulting in seizures of “more than 20 million motorists every year.” The frequency of traffic stops is compounded by the malleability of their potential legal justifications. In Whren v. United States, the Supreme Court held that a pretextual traffic stop motivated by a desire to investigate a vehicle’s occupants for unrelated criminal activity (for which the officer does not yet have probable cause) does not violate the Fourth Amendment so long as the officer had probable cause to stop the vehicle for a traffic violation. Though Whren does not allow the officer to search the vehicle without additional probable cause, there are several lesser investigations—such as intrusive lines of questioning and even drug dog sniffs—that officers might perform to continue to develop unrelated suspicions
