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Tax Complexity and Technology
Get PDFThe Federal Income Tax Code has become increasingly complex over time with the implication that many taxpayers no longer understand the connection between their life decisions and their taxes. Some commentators have suggested that increasing computational complexity may be attributable in part to the proliferation of tax preparation software that renders such complexity manageable at filing time, but otherwise does nothing to mitigate the “black box” nature of the tax system. While such complexity and opacity undercut explicit incentives embedded in the Code, make planning more difficult, and undermine political accountability for taxes, they may also reduce the inefficient distortion or deadweight loss of the income tax, particularly with respect to higher-income taxpayers.
This Article argues that technology represents a potential response to tax complexity and opacity as well as a contributing factor. It argues that tax planning software can and likely will be used to restore “functional transparency” to the Code, for good or bad, alerting taxpayers to explicit incentives, allowing taxpayers to easily determine the tax consequences of their life decisions, and providing a means for improving fiscal citizenship, but also highlighting tax burdens in such a way as to increase deadweight loss. This Article also makes the case for government provision or subsidization of planning software targeted at lower-income taxpayers. Such a targeted approach will help level the tax planning playing field and improve the take-up of tax incentives by this population, while avoiding facilitating social welfare reducing tax planning by higher-income taxpayers
Taming Unicorns
Get PDFUntil recently, most startups that grew to become valuable businesses chose to become public companies. In the last decade, the number of unicorns—private, venture-backed startups valued over one billion dollars—has increased more than tenfold. Some of these unicorns committed misconduct that they successfully concealed for years. The difficulty of trading private company securities facilitates the concealment of misconduct. The opportunity to profit from trading a company’s securities gives short sellers, analysts, and financial journalists incentives to uncover and reveal information about misconduct the company commits. Securities regulation and standard contract provisions restrict the trading of private company securities, which undermines the deterrence of private company misconduct.
This Article proposes a three-pronged plan to encourage trading in private company securities, without compromising investor protection. First, reform section 12(g) of the Exchange Act so that companies are no longer forced to go public when they acquire 2000 accredited investor shareholders. Second, attach a regulatory most-favored-nation clause to private company securities so that companies may not grant the right to resell selectively. Third, require that private companies with tradable securities make limited public disclosures. These reforms would create a new market for trading unicorn securities and strengthen deterrence of unicorn misconduct
Regulating Charitable Crowdfunding
Get PDFCharitable crowdfunding is a global and rapidly growing new method for raising money to benefit charities and individuals in need. While mass fundraising has existed for hundreds of years, crowdfunding is distinguishable from those earlier efforts because of its low cost, speed of implementation, and broad reach. Reflecting these advantages, it now accounts annually for billions of dollars raised from tens of millions of donors through hundreds of internet platforms, including Charidy, Facebook, GoFundMe, and GlobalGiving. Although most charitable crowdfunding campaigns raise only modest amounts, on occasion a campaign attracts tens of millions of dollars in donations. However, charitable crowdfunding also has its downsides. Donors may misunderstand how the beneficiaries will use the funds raised, or a campaign that unexpectedly goes viral may overwhelm a small charity or greatly exceed an individual’s needs. There have also been instances of outright fraud, as well as concerns raised about money laundering and terrorist financing.
Existing laws relating to charitable solicitations and charities more generally have either uncertain or limited application to charitable crowdfunding. Broader fraud and money laundering laws may apply to the worst abuses, but government officials rarely invoke these usually criminal statutes. The challenge faced by regulators is therefore whether and how to modify existing laws to address the downsides of this new activity without unduly inhibiting the generosity that charitable crowdfunding encourages. This challenge is made more difficult by the lack of information regarding both the positive effects and downsides of crowdfunding. Finally, existing scholarship relating to charitable crowdfunding focuses on either the motivations of donors or tax implications instead of addressing this regulatory issue, even as governments are developing proposals to address this activity.
This Article reviews the existing, incomplete information regarding charitable crowdfunding and theories for regulating in the face of uncertainty to develop recommendations for addressing this new and growing phenomenon. Given we know very little about the positive and negative effects of charitable crowdfunding, and given that any harms are likely modest, primarily financial, and often readily cured, I recommend that regulators should at this time only take two modest steps. First, they should require notification of designated beneficiaries to help ensure funds raised reach those beneficiaries. Second, they should require notification of regulators, but only for the small subset of campaigns that cross a relatively high threshold to provide information about the scale and growth of charitable crowdfunding and help resolve any problems that arise with the largest campaigns. I therefore disagree with initial steps taken by some regulators to impose more comprehensive consent and administration requirements on many or all charitable crowdfunding campaigns. Such requirements are unnecessary hindrances on this new and innovative way of encouraging generosity, given there is little evidence of widespread problems, and any potential harm is almost certainly relatively small and easily remedied if it occurs
Respeaking the Bill of Rights: A New Doctrine of Incorporation
Get PDFThe incorporation of the Bill of Rights against the states by way of the Fourteenth Amendment raises a host of textual, historical, and doctrinal difficulties. This is true even if (especially if) we accept the Fourteenth Amendment as having made the original Bill of Rights binding against the states. Does this mean we have two Bills of Rights, one applicable against the federal government with a “1791” meaning and a second applicable against the state governments with an “1868” meaning? Do 1791 understandings carry forward into the 1868 amendment? Or do 1868 understandings of the Bill of Rights carry backward into the 1791 amendments through the doctrine of “reverse incorporation”?
This essay proposes a new way to solve these conundrums and reconcile the original Bill of Rights with the incorporated Bill of Rights and do so in a manner consistent with a historically based understanding of the Fourteenth Amendment. When the people adopted the Fourteenth Amendment into existence, they readopted the original Bill of Rights, and did so in a manner that invested those original 1791 texts with new 1868 meanings. There is only one Bill of Rights—the one the people spoke into existence in 1791 but then respoke in 1868. This respoken Bill of Rights is now one of the privileges or immunities of citizens of the United States which neither state nor federal government may abridge
Data Types, Data Doubts & Data Trusts
Get PDFData is not monolithic. Nonetheless, the word is frequently used indiscriminately—in reference to a number of distinct concepts. It may refer to information writ large, or specifically to personally identifiable information, discrete digital files, trade secrets, and even to sets of AI-generated content. Yet each of these types of “data” requires different governance regimes in commerce, in life, and in law. Despite this diversity, the singular concept of data trusts is promulgated as a solution to our collective data governance problems. Data trusts—meant to cover all of these types of data—are said to promote personal privacy, increase corporate transparency, facilitate the sharing of data, and even pave the way for the next generation of artificial intelligence. These anticipated benefits, however, require the body and flexibility of equitable trust law and its inherent fiduciary relationships for their fruition. Unfortunately, American trust law does not allow for the existence of such general data trusts. If anything, the judicial, academic, and legislative confusion regarding data rights—or data’s status as property— demonstrates that discussions of data trusts may be ignoring a key element. Without first determining whether (or what kind of) data can be recognized as a trust res (i.e., as trust property) under existing law, it may be premature to accept data trusts as the private law solution to data governance. If, on the other hand, the implementation of data trusts requires legislative intervention, its purported benefits must be analyzed in contrast to the myriad other new and evolving data governance frameworks that would similarly require legislation. By analyzing existing trust law and the difficulties of defining data rights, this essay highlights the urgent need to pursue doctrinally, legislatively, and technologically viable data governance strategies
Capturing Impact: Telling the Story of Your Scholarship Beyond the Citation Count
Get PDFAshley Ahlbrand\u27s contribution to this volume is Capturing Impact: Telling the Story of Your Scholarship Beyond the Citation Count.
When we conduct research, what is our end goal? Who is our audience? Since the mid-20th century, with the development, first, of journal citation indexes, then journal impact factors, then journal citation metrics for individuals, academia has seen increased pressure to publish and be cited in journals within one \u27s discipline. These citation metrics are used to compare schools and to evaluate scholars for promotion and tenure, for grant consideration, and for bestowing other awards and honors. Discipline-specific journal citations tend to be the easiest to measure, looking to a major scholarship database, such as Web of Science or HeinOnline. Yet as critics of these measures have shown, they are woefully incomplete. To set high stakes on such an inaccurate number and call it scholarly impact stands to devalue all the other forms that scholarship can take. This article seeks to address that misvaluation, first by surveying the history and reasoning behind these citation counts; then examining the varied forms and formats scholarship can take; and ending with a discussion of other measures, tools, and strategies for painting a more holistic picture of scholarly impact.https://www.repository.law.indiana.edu/facbooks/1305/thumbnail.jp
2022/23 Indiana University Maurer School of Law Staff
No full textFront Row: Katie Beck, Anne McFadden, Christiana Ochoa, Lisa Hosey, Amanda Homce, Cassie Fitzwater
Second Row: Marian Conaty, Randy Sparks, Libby Steinbach, Susan Yoon, Abby Koop, Rebecca Keough, Sarah Synder, Connie Griffin
Third Row: Paul Styles, Garron Quimby, Sarah Portwood, Paul Leopold, Kyle Impini, Sarah Benson, Jana McGee, Molly Hayes
Fourth Row: Frank Burleigh, Justin Zuschlag, Stephanie Coffey, Ginnie Phero, Theo Tripodis, Rita Eads
Fifth Row: Jamil Ghazal, Collin Vonderahe, Kate Caldwell, James Boyd, Lara Gose, Kim Hughes, Mary Edwards, Steve Withemhttps://www.repository.law.indiana.edu/staff/1004/thumbnail.jp
Salter ’03, Putting Legal Analysis Skills to Use as CEO of the News Literacy Project
Get PDFYou can handle the truth. Or at least that’s what Chuck Salter and the News Literacy Project hope. In a world where fake news, disinformation, propaganda, and misinformation are more prevalent than ever, the 2003 Indiana Law alumnus and the nonprofit organization he leads are doing all they can to help citizens determine the credibility of news and other information they’re receiving.
“We’re based on the idea that information—we live in the most complex information landscape in human history—is also easily manipulated,” said Salter. “People are just not equipped to deal with this much information and to detect when they’re being bamboozled.” Enter the News Literacy Projec
The Law and Politics of Ransomware
Get PDFWhat do Lady Gaga, the Royal Zoological Society of Scotland, the city of Valdez in Alaska, and the court system of the Brazilian state of Rio Grande do Sul all have in common? They have all been victims of ransomware attacks, which are growing both in number and severity. In 2016, hackers perpetrated roughly four thousand ransomware attacks a day worldwide, a figure which was already alarming. By 2020, however, ransomware attacks reached a staggering number, between 20,000 and 30,000 per day in the United States alone. That is a ransomware attack every eleven seconds, each of which cost victims on average nineteen days of network downtime and a payout of over 20 billion.This Article offers an account of the regulatory challenges associated with ransomware prevention. Situated within the broader literature on underenforcement, the Article explores the core causes for the limited criminalization, prosecution, and international cooperation that have exacerbated this wicked cybersecurity problem. In particular, the Article examines the forensic, managerial, jurisdictional, informational, and resource allocation challenges that have plagued the fight against digital extortions in the global commons.To address these challenges, the Article makes the case for the international criminalization of ransomware. Relying on existing international regimes––namely, the 1979 Hostage Taking Convention, the 2000 Convention Against Transnational Crime, and the customary prohibition against the harboring of terrorists––the Article makes the claim that most ransomware attacks are already criminalized under existing international law. In fact, the Article draws on historical analysis to portray the criminalization of ransomware as a “fourth generation” in the outlawry of Hostis Humani Generis (enemies of mankind).The Article demonstrates the various opportunities that could arise from treating ransomware gangs as international criminals subject to universal jurisdiction. The Article focuses on three immediate consequences that could arise from such international criminalization: (1) Expanding policies for naming and shaming harboring states, (2) Authorizing extraterritorial cyber enforcement and prosecution, and (3) Advancing strategies for strengthening cybersecurity at home
Considering Machine Testimony : The Impact of Facial Recognition Software on Eyewitness Identifications
Get PDFThis Article uses a wrongful conviction lens to compare identifications by machines, notably facial recognition software, with identifications by humans. The Article advocates for greater reliability checks on both before use against a criminal defendant. The Article examines the cascading influence of facial recognition software on eyewitness identifications themselves and the related potential for greater errors. As a solution, the Article advocates the inclusion of eyewitness identification in the Organization of Scientific Area Committees\u27 ( OSAC ) review of facial recognition software for a more robust examination and consideration of software and its usage. The Article also encourages police departments to adopt double- blind procedures for eyewitness identifications, including when matching photos from facial recognition software are included. Finally, the Article concludes with a prediction of where these two fields will be ten years from now, in 2032