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Maryland’s Digital Tax and the ITFA’s Catch-22
No full textIn this installment of Academic Perspectives on SALT, the authors examine whether state level taxes on digital advertising — like Maryland’s new tax — are barred by the Internet Tax Freedom Act and discuss how the act’s prohibition against “discriminatory” taxes on electronic commerce should be construed narrowly
The Myth of Eternal Return and the Politics of Judicial Review
Get PDFConstitutionalism is an ancient idea, albeit one long associated with the form of regimes in general rather than self-governance under written charters that lay down fundamental law. As such, constitutionalism began its life linked to “dreary cyclical” stories of rise and decline, improvement and decadence, splendor and ruin. In doing so, it repurposed archaic thinking from even earlier to descry the direction of constitutional politics. But modern constitutionalism, especially the neo-providentialist form that many Americans have learned to associate with self-governance under a written document, is not the same as the archaic or the ancient. It works with a dualism of fundamental and ordinary law that owes its sources to Christian theology, making it difficult for any Americans to embrace fully the stories of proud ascendancy and inevitable fall in which the archaic imagination and then ancient Greeks and Romans trafficked so long
A Contractual Dilemma: Where Arbitration Agreements and Delegation Provisions Collide
Get PDFInterpretation of arbitration agreements continues to present unique and challenging issues in Missouri law. Arbitration is a mainstay of the wider field of alternative dispute resolution, seeking to merge the competing interests of would-be litigants in a speedier, less expensive, less formalized environment. Delegation provisions, however, serve as an additional analytical hurdle in determining when and what disputes can be rightfully sent to arbitration. At first glance, a seemingly irreconcilable dilemma is presented. Must assent to the arbitration agreement, and thus the delegation provision, exist before the dispute will be sent to arbitration? Or is the simple appearance of a delegation provision, combined with an absence of an explicit challenge to that same provision, per se sufficient to send the arbitrability dispute to the arbitrator
Form Over Function: The Case for Employing the Arbitrary and Capricious Standard in Reviewing Top-Hat Plan Denials of Benefits
Get PDFThe Supreme Court held in Firestone Tire & Rubber Co. v. Bruch that the review of administrators’ decisions to deny benefits under ERISA-qualified plans must be accorded a non-deferential, de novo standard of review. But what about top-hat plans? A top-hat plan is a type of nonqualified deferred compensation plan designed to avoid key ERISA provisions, including ERISA’s fiduciary provisions. In the decades since Firestone, this question has remained unanswered. What has occurred is a rift among the appellate courts, centered around a split between the Third and Seventh Circuits. This article addresses the dilemma and advocates for the implementation of the deferential arbitrary and capricious standard over de novo review. The following analysis employs original observations drawn from the cases, such as the overlap of the administrator and fiduciary positions, in constructing an argument centered around the theme of the mootness and irrelevance of de novo review
Arbitration in the Age of Covid: Examining Arbitration\u27s Move Online
Get PDFArbitration has been moving online over time with the growth of the Internet and Online Dispute Resolution (“ODR”), which includes use of technology to assist online negotiation, mediation, arbitration, and variations thereof. Online Arbitration (“OArb”) is nonetheless a unique subset of ODR because it usually culminates in a final and binding award by a neutral third party that is enforceable under the Federal Arbitration Act (“FAA”). Indeed, I have written about OArb on prior occasions, due to its unique status under the FAA and other arbitration laws. However, OArb was relatively limited until the COVID-19 pandemic sparked the acceleration of arbitration’s move online. At the same time, jurisprudence around the FAA has sent various signals that both help and hinder the growth of OArb. Furthermore, the 1925 FAA was not built to address innovations like virtual hearings, creating a need for policies that adapt for technological progress. Accordingly, this Article discusses how recent jurisprudence and institutional promulgations may impact OArb and offers considerations for courts, policymakers, and practitioners shepherding OArb development
References to Aesop\u27s Fables in Judicial Opinions and Written Advocacy
Get PDFIn several “Writing It Right” articles over the past few years, I have described how federal and state judges frequently accent their opinions\u27 substantive or procedural points with careful references to cultural markers familiar to many Americans. This article continues traveling the literary lane by turning to Aesop’s Fables. By invoking a Fable, the Friends of Animals district court continued a tradition that began in 1823, when the Pennsylvania Supreme Court cited Aesop in a will contest
How States Should Now Consider Expanding Sales Taxes to Services, Part 2
No full textAs we explained in our prior essay, state governments are experiencing severe revenue needs because of COVID-19, and expanding state sales tax bases to include services is a promising option for state governments to manage their budget shortfalls. In this, the second essay in this series — a contribution to Project SAFE: State Action in Fiscal Emergencies — we explain some of the implementation details and options for how states might go about expanding their sales tax bases to include services. In particular, we argue that there are some incremental steps that seem to be technically and politically feasible as responses to the current crisis.2 In particular, we argue the states should start by expanding their sales taxes to include services that are least problematic as a matter of policy and politics
Wage Enslavement: How the Tax System Holds Back Historically Disadvantaged Groups of Americans
Get PDFDespite the importance placed on equality of opportunity within United States political culture, the existing tax system inhibits historically disadvantaged groups from building wealth or catching up with historically more privileged groups. This effectively then traps many members of historically disadvantaged groups into a continued cycle of dependence on tax-disfavored wage and salary income, a phenomenon that we metaphorically label as “wage enslavement.” This Article explains this phenomenon and then calls for reform
Citizen Activist or Professional Lobbyist? Eighth Circuit Decides That Political Activity is “Lobbying” Only When Money is Involved
Get PDFIn determining the constitutionality of lobbyist registration laws, where do courts draw the line between lobbyists and politically active citizens? What is the difference between a citizen simply sharing their ideas with their elected officials and influencing them? In 2019, the United States Court of Appeals for the Eighth Circuit attempted to draw the line in Calzone v. Summers by holding that Missouri lobbyist registration laws violated the First Amendment as applied to an uncompensated lobbyist who incurred no expenditures relating to his lobbying efforts. This decision protects individuals who neither spend nor receive any money in connection with their political activities from the requirement that they register as lobbyists in the State of Missouri. After hearing the decision of the Eighth Circuit, the plaintiff, Ronald Calzone, stated in an interview: “It has been a long time coming, but I’m pleased that the Court of Appeals got this right. Unpaid citizen activists like myself keep our elected officials informed and accountable by sharing our views about public policy. A government cannot force unpaid activists to jump through regulatory hoops in order to exercise their First Amendment rights.