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It Wasn’t Me: How the Doctrines of Sovereign Immunity and Misnomer Frustrate Missouri’s Petroleum Cleanup Efforts
Get PDFHonk! Honk! Crash! You have just been injured in a car accident. The other driver is completely at-fault, but luckily, she was insured. You timely submit your valid claims to her well-known insurance agency, but the agency denies the claim for no apparent reason. While confused and frustrated, you take comfort in the fact that society created insurance companies to address your exact injuries and that the legal system provides remedies for this very situation. Your attorney reassures you that the other driver and her insurance agency will be held accountable, and justice will be served
Reading the Court’s Palm: The Unclear Present and Future for Cost-Shifting Under Rule 54(d)(1)
Get PDFA tie is like kissing your sister1 This unique turn of phrase captures the American attitude towards ties—there are, or should be, winners and losers. But this notion of dedicated victories and defeats is not as strong as it once was. Whether it is the increased frequency of ties in the National Football League (“NFL”) over the past few years, the growth of soccer in the United States, or the split nature of our bicameral legislature, ties are a familiar part of the average American’s experience. Even our judicial system cannot avoid questions of “ties.” The idea that every court case has an established winner and loser in the context of cost-shifting has been increasingly raised in federal appellate court cases within the past 50 years. This trend suggests that, even when cases end in a judgment for or against a party, litigants can end up on the same equal footing as they started; or even worse, the parties may be denied otherwise customary cost-shifting on the basis that neither of them was able to win a decisive victory
State Constitutional Limitations to Cities Taxing the Digital Economy
Get PDFThe digital economy’s rapid evolution, most recently with the rise of artificial intelligence, demands a reevaluation of state constitutional limitations on local taxation of digital transactions. Citizens have long feared excessive or unfair tax burdens, hence the adoption of constitutional amendments that prohibit legislators from increasing taxes or imposing new taxes without a public vote. However, these constitutional limitations are now preventing cities from taxing digital transactions that are taking over the economy. This is a serious financial problem for cities whose traditional sources of tax revenue, such as sales taxes and property taxes, are dwindling due to the digitalizing economy.
Without the ability to enact legislation imposing taxes on digital transactions, cities have gone to extreme measures to tax streaming service revenue. Some cities have brought lawsuits against streaming companies such as Netflix and Hulu alleging that these companies should be paying a franchise fee that was historically only imposed on cable providers. While consumers have cut the cord on cable television and replaced cable with streaming services, these video service provider statutes should not be used to tax streaming services. However, constitutional tax limitations left these cities with no choice but to try to use these statutes to replace lost franchise fees from cable television providers.
While this article specifically discusses streaming services, using Netflix’s and Hulu’s business models as examples, this article argues that state constitutional tax limitations are preventing cities from taxing all digital transactions and proposes that constitutional tax limitations should not apply to sales or similar transaction-based taxes.
This article makes three contributions to the tax literature. First, it examines lawsuits brought by cities in California, Nevada, and Missouri against streaming service providers Netflix and Hulu and argues that these lawsuits were brought because state constitutional tax limitations prevented these cities from imposing sales tax on streaming service revenues.
Second, this article adds to the tax literature on constitutional tax limitations by analyzing these limitations in the light of the digital economy. In addition, this article analyzes a unique state constitutional provision that completely prohibits a city from imposing any new sales or similar transaction-based tax.
Finally, this article proposes that constitutional tax limitations should exclude sales and similar transaction-based taxes. The proposal would allow cities to tax revenues from streaming services as well as revenues from the broader digital economy. This article contributes to tax scholarship by evaluating the proposal against tax policy considerations as they relate to constitutional tax limitations on the digital economy
Neo-Brandeisianism\u27s Democracy Paradox
Get PDFNeo-Brandeisians, including the current heads of the U.S. antitrust enforcement agencies, have declared contemporary antitrust a failure. Among their chief complaints is that prevailing antitrust doctrine has failed to protect democratic values because it has allowed business enterprises to amass excessive economic power. Such economic power, they assert, breeds undue political power as large firms have the resources to sway policymakers and may thereby thwart majority will. Outside the political realm, NeoBrandeisians say, massive industrial concentration undermines effective self-governance by rendering citizens beholden as consumers, suppliers, and laborers to a small group of powerful firms. To preserve democratic values, defined both narrowly in terms of actual democratic functioning and broadly in terms of economic self-governance, NeoBrandeisians press for a fundamental reordering of the antitrust enterprise. Key components of this reordering are: (1) abandonment of antitrust\u27s consumer welfare standard (exemplified by the U.S. Federal Trade Commission\u27s replacement of its 2015 enforcement policy on unfair methods of competition with a multi-goaled enforcement policy), and (2) a move toward ex ante conduct rules in lieu of enforcement via adjudication under ex post standards (exemplified by the Commission\u27s recent proposal to ban worker noncompete agreements). The combined effect of these two moves, however, would be to centralize political power, weaken democratic accountability, and reduce individual freedom. Given that the promotion of democratic values is NeoBrandeisianism \u27s reason for being, Neo-Brandeisianism is a policy at war with itself
Rigor or Reach? Strictness or Scope?: The Continuing Battle Over the Parameters of The Supreme Court’s Daubert/Kumho Reliability/Validation Test for the Admissibility of Expert Testimony
Get PDFExpert testimony is offered at the overwhelming majority of trials conducted in the United States. In many of these cases, it is absolutely essential for the plaintiff or prosecutor to introduce such testimony. The plaintiff may need expert testimony to prove general causation in a toxic Tort case, and similarly the prosecutor may need to resort to expert testimony to establish the accused’s identity as the perpetrator of the charged crime. For decades, the proponents of expert testimony have mounted campaigns to lower the evidentiary barriers to expert testimony. For most of the 20th century, the governing American test for the admissibility of expert testimony was the Frye general acceptance standard. The courts espousing the standard characterized it as a conservative test that was needed to compensate for lay jurors’ tendency to ascribe excessive weight to new scientific theories and techniques. However, the proponents of expert testimony were astute enough to realize that the reach or scope of a test can be every bit as important as its rigor or strictness. Given Frye’s rationale, the proponents of expert testimony persuaded most Frye jurisdictions to narrow the substantive scope of the test to novel, instrumental, purportedly scientific testimony. Consequently, many courts exempted traditional forensic techniques, soft science, and nonscientific expert testimony from scrutiny
Intimate Partner Violence: Access to Protection Beyond the Pandemic
Get PDFCivil protection orders are the most common legal remedy victims pursue in response to intimate partner violence (IPV). They are more empowering for victims than the criminal legal system because victims themselves drive the process, instead of prosecutors, and they offer more flexible and tailored relief. This Article argues that victims should be able to choose how they file petitions and participate in civil protection order hearings, and that judges should be required to honor those preferences absent good cause. This conclusion is driven by two new, original sets of empirical data collected from IPV survivors who have sought civil protection orders and legal services providers who assist victims with navigating the process.
The data from legal services providers provide a picture of court protective order procedures in jurisdictions across the country from before the pandemic, in the pandemic’s early stages, and in the pandemic’s advanced stages, once public health restrictions were generally lifted. This complements the rich data about the lived experiences of survivors who sought a protection order against their abuser during the pandemic in one of New York City’s five family courts. Eighty-five percent of participants in this study are women of color, whose lived experiences are especially important to understand because they comprise a population that is disproportionately impacted by IPV.
The data indicate that IPV victims have diverse preferences with respect to method of participation in hearings, based on their varying needs, concerns, priorities, and circumstances. The current landscape of procedures across the country largely fails to account for this diversity by mandating a particular participation method or by allowing individual judges to do so in accordance with their own preferences. On the basis of the research results, this Article argues for codifying “accessible process pluralism” in state protective order statutes. This statutory framework would give petitioners the opportunity to indicate their hearing participation preference on the petition itself and require judges to follow these choices absent good cause, among other accessibility-focused provisions. By harnessing the innovations and lessons from the pandemic, this proposal promotes survivor empowerment and access to justice for both petitioners and respondents
Synthetic Seduction: Navigating AI-Generated Content and the Complexities of Name, Image, and Likeness Law
Get PDFWaking up and finding videos of yourself online engaged in lewd acts is traumatizing—realizing that the videos were created by artificial intelligence without your consent exacerbates the trauma even further. With technology advancing faster than the law can keep up, safeguards need to be implemented to protect victims of internet crimes. This article examines the prevalence of deepfake pornography, its creation, and the damage it causes. Further, this article examines the current short-comings of the right of publicity, the right to privacy, copyright law, and revenge pornography law as they currently stand. This article proposes an exception to Section 230 of the Communications Decency Act as the best possible solution to the problem victims are facing. This proposed exception is not the first of its kind, and, if implemented, it has the potential to revolutionize the way victims of deepfake pornography receive redress for the violations committed against them
Copycat Fashion: How Fast Fashion Giant, Shein, Continues to Steal Independent Designers’ Work
Get PDFThis article explores the rise of Shein as a leading fast fashion enterprise, the current copyright protections and limitations for independent fashion designers, the legislative history and attempts by Congress to address infringement issues within the fashion industry, and a glimpse of how the court should rule in the pending Shein lawsuit and how that ruling would impact the fast fashion industry as a whole