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The Market for Bankruptcy Courts: A Case for Regulation, Not Obliteration
Get PDFLarge corporate debtors typically file for bankruptcy only after conducting a thorough analysis as to the most favorable venue for the case. Recent legislation has proposed to severely limit all corporate debtors’ ability to select bankruptcy venue. The messaging behind calls for venue reform is outwardly altruistic: it is said to be necessary to facilitate access to justice and to prevent abuse of the system. However, the push for venue reform is largely driven by professional envy and a distrust of specific judges based on unpopular high-profile rulings. Placing new constraints on the ability to choose venue will not achieve the reform’s stated goals and may instead harm debtors and their creditors by limiting their ability to have complex bankruptcy issues heard in the venue to which they are best suited. A better approach is to facilitate a market selection process in which both debtors and creditors can participate, simultaneously enacting reforms that will facilitate creditor involvement and encourage uniformity among courts in matters of substantive and procedural law
Exploring Flexibility in 83(b) Elections: A Tax Policy Proposal
Get PDFProperty awards, such as equity, are taxable to the recipient and have tax implications for employers, too. Without a recipient making an 83(b) election, property awards are taxable when they are granted. For awards that have vesting requirements or are considered “restricted,” they are generally taxable upon vesting. However, making an 83(b) election allows recipients of restricted property awards to be taxed as if the property were vested, meaning more income will shift from ordinary tax rate treatment to preferential tax rate treatment.
The preferential tax system is foundational to the 83(b) election. Advocates believe that preferential tax rates in an 83(b) context promote economic growth and encourage efficient capital allocation. However, critics contend that 83(b) elections disproportionately benefit the wealthy because they require electors to pay taxes earlier, which may disadvantage lower-income individuals. Two similarly situated employees may receive significantly different tax treatment based on the type of compensation and whether they make the 83(b) election. Furthermore, the complexities and rigidity of this provision of the tax code create their own inequities. Although the 83(b) election grants flexibility and control for taxpayers, it needs more flexibility by extending the deadline to file. Perhaps providing downside protection for 83(b) electors can encourage more employers to grant property to their employees and service providers. Ultimately, these solutions will allow more people to enjoy the benefits of preferential tax treatment, thereby making preferential tax rates more equitable for everyone
Triangulating the Likelihood of Confusion: Linguistics and Consumer Surveys
Get PDFThis Article highlights contributions that linguistic analysis can offer in the assessment of the likelihood of confusion in trademark infringement cases. Parties in such cases often engage an expert witness to conduct a survey that measures the likelihood of consumer confusion. We show how an expert linguist can provide important, nonintuitive dynamics of corroboration. We introduce “expert triangulation” as a conceptual framework to analyze whether, and to what extent, experts in linguistics and consumer surveys can corroborate one another. That is, having two different sources of empirical evidence which lead to similar conclusions should be a benefit to the courts, allowing them to have greater confidence in the veracity of empirical conclusions. But the increased value to the courts is not uniform across all cases. The extra value provided by the testimony of an additional expert depends on (1) the similarity of the scientific discipline and training of the two experts, (2) the similarity of the data and analytical methods used by the two experts, and (3) the extent to which the two experts work together during their research process. Corroboration is maximized when experts are different from one another on all three dimensions. From the perspective of “expert triangulation,” we conclude that linguists and survey researchers have the potential to offer sizable corroboration to one another. We explore that potential by analyzing the comparative strengths and limitations of linguistic analysis and consumer surveys in the context of trademark confusion cases. Finally, we illustrate the process by describing the mutually corroborating contributions made by a linguistics expert and a consumer survey expert as part of a recent federal trademark confusion case
SCOTUS at the Bat: Touching Base with Baseball’s Antitrust Exemption
Get PDFIn the longstanding debate surrounding Major League Baseball’s exemption from federal antitrust laws, recent legal developments and Supreme Court dynamics call for a reexamination of the Supreme Court’s 1922 Federal Baseball decision. Drawing parallels between the Court’s landmark decision in Dobbs v. Jackson Women’s Health Organization and the potential reconsideration of Baseball’s exemption, this paper explores the factors at play and the implications for the future of the sport.
Through the Court’s framework of five factors as used in Dobbs, the paper evaluates the nature of the Court’s error, the quality of reasoning, workability, effect on other areas of law, and reliance interests. This framework is then applied to the case of Baseball’s exemption, revealing inconsistencies, weaknesses, and the need for a course correction. Examining the composition of the Supreme Court post-Dobbs highlights the potential for a shift in attitude towards Baseball’s exemption. With recent appointments altering the Court’s dynamics, coupled with a growing skepticism towards the exemption’s validity, there emerges a newfound readiness to challenge long-standing precedent.
In light of these developments, this paper argues for a reexamination of Baseball’s exemption, emphasizing the need for fairness, legality, and alignment with contemporary legal principles. As the game reaches its late innings, the Court faces the opportunity to take a decisive swing and rectify a century of anticompetitive practices. By engaging with recent legal discourse and Supreme Court dynamics, this paper contributes to the ongoing conversation surrounding Baseball’s exemption and its implications for the future of the sport
Standing and Criminal Law
Get PDFAccording to the Supreme Court, the “irreducible constitutional minimum of Article III standing” is a concrete, particularized injury in fact that is traceable to the defendant and redressable by a favorable judgment. But this set of requirements does not apply in criminal cases. The federal government has authority to bring prosecutions for any violation of federal criminal law, regardless of whether the crime caused concrete harm to the United States or anyone else, and even though the punishment for the crime does not redress an injury in any conventional sense.
This Article argues that the difference in standing requirements between civil and criminal cases is unwarranted. The various justifications provided for standing—the text of Article III, historical practice, principles of separation of powers, and a host of practical considerations—all support imposing the same standing requirements in civil and criminal cases. Moreover, maintaining the different standing requirements has various undesirable consequences. It results in the government having broader access to the courts to enforce its interests than individuals to enforce their rights, and it tends to devalue civil rights relative to government interests. It also encourages the proliferation of criminal laws. Because a lower standing threshold applies to criminal cases, criminal law is a more robust and flexible tool for regulation than civil laws conferring individual rights. This advantage incentivizes Congress to regulate through criminal law—thus contributing to the problems of overcriminalization and mass incarceration
Navigating Section Three from Griffin’s Case to the Case of Couy Griffin: Who Should Decide Its Longstanding Questions?
Get PDFSection Three of the Fourteenth Amendment was a long-dormant constitutional provision enacted to bar former Confederates from political office. Then, as a result of the shocking political violence at the United States Capitol on January 6, 2021, Section Three suddenly found itself resurrected into the national political discussion. Scholars and courts are now grappling with Section Three’s original meaning and modern application to those politicians and office holders whose conduct led to the events on January 6 — events that interrupted the peaceful transfer of power and left a stain on the United States’ democratic tradition.
Yet, use of Section Three to disqualify or remove elected officers has its own implications on democracy. Democratic ideals presuppose that individuals have the right to vote for candidates of their choosing. Can formalistic application of constitutional requirements for office burden that right? The United States’ constitutional structure contains a democracy restrained within a framework of rules and limits. This is well understood. But when there are questions about those constitutional rules — such as whether candidates are disqualified under Section Three — how does the system find answers? The states, courts, legislative bodies, and individual voters all must play diverse roles in deciding our rules of democracy
Regulating Strategic Sovereign Wealth
Get PDFIn an era of ascendant globalization, sovereign wealth funds were used by governments around the world – and, in particular, by governments with massive natural resource wealth or balance-of-trade surpluses – to invest widely in foreign markets. Sovereign wealth funds were products of the international economic order then in existence, adapted to a political and economic environment in which borders could be easily crossed and foreign assets seemed abundant and easily acquired. After the Financial Crisis, and with the increasing nationalization seen in the 2010s, this environment began to change. Both domestic and international forces spurred the development of new, “strategic” sovereign funds. No longer operating primarily in international markets, nor tightly linked to the international economic order, these sovereign funds are developments of a more desperate age. Rather than focusing on outward investment, these sovereign funds turn inward, focusing instead on domestic concerns and prioritizing domestic political legitimacy. While these strategic funds are designed to thrive in more nationalized economic and political environments, the legal regimes of the sovereign funds’ home jurisdictions must also adapt to the domestic turn in sovereign funds. This Article analyzes recent legal adaptations that attempt to manage a more mercantilist and nationalistic orientation from sovereign funds, and it outlines a framework for the legal innovations necessary to regulate and govern the funds within their home jurisdictions and minimize the risk of negative spillovers in other jurisdictions