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States Should Consider Partial Wealth Tax Reforms
Get PDFThis article is a contribution to Project SAFE (State Action in Fiscal Emergencies). In other essays in this project, we explain steps the federal government should take to help state and local governments cope with their looming budget crises. The federal government is much better positioned to manage these crises than states and localities and, ideally, it would act sufficiently to prevent the need for state and local governments to cut spending or raise taxes. However, we fear that the federal government may fail to act sufficiently, leaving states and localities with the need to make painful spending cuts, raise taxes, or both. Here, we make some suggestions for how states should respond if the federal government fails to act sufficiently.
Specifically, we argue that the states should consider adopting partial wealth tax reforms, at least temporarily, to raise needed revenue to weather the budget crises. There are at least two promising options that could be designed and implemented sufficiently quickly (at least in some states) to make good policy responses to the crise
The Ordinary Diet of the Law: How to Interpret Public Law 86-272
Get PDFIndeed, in today’s world, filled with legal complexity, the true test of federalist principle may lie, not in the occasional constitutional effort to trim Congress’ commerce power at its edges, or to protect a State’s treasury from a private damages action, but rather in those many statutory cases where courts interpret the mass of technical detail that is the ordinary diet of the law.
Public Law 86-272 is an important feature of the landscape of both state corporate income taxation and state tax policy more generally. The Multistate Tax Commission is completing an important project on updating the guidance given to taxpayers regarding compliance with P.L. 86-272. We plan to discuss some key features of this planned guidance in a future article (or perhaps articles). But first we will discuss the overall interpretive rubric that should be used for P.L. 86-272
Works of Eleanor D. Kinney
Get PDFEleanor D. Kinney was a prolific scholar throughout her thirty-five years as a professor at Indiana University Robert H. McKinney School of Law. She authored or co-authored more than seventy-five journal articles, publishing in numerous peer-reviewed medical and health journals, as well as law reviews. She wrote three books, edited a fourth, and published nine book chapters
Professor Kinney’s work has been cited in at least ten court opinions. Her work has garnered more than 700 citations in law review articles, and nearly 200 in medical and health policy journals. The influence of her work places her within the top 1,000 most cited legal scholars.1 Although a scholar of many aspects of health care law, Professor Kinney’s work on Medicare and Medicaid was particularly influential. Her 1990 report to the Administrative Conference of the United States, reprinted in the Ohio State Law Journal under the title Rule and Policy Making for the Medicaid Program: A Challenge to Federalism, helped establish her national reputation as an expert in the field. Just over a decade later, her Guide to Medicare Coverage Decision-Making and Appeals, became an essential tool for those practicing in administrative health law. After her retirement, she continued to publish in this area, with additional books appearing in 2015 and 2017.
Professor Kinney also developed an interest in health law at the international level when the idea of an “international human right to health” attracted notice. Several of her most cited articles address this right, and she went on to write about related subjects such as global responses to health crises, comparisons between various national constitutions’ provisions regarding health and health care, and the differences in laws regarding information for consumers. She also wrote about the development of international administrative law more generally.
Medical malpractice and its reform were other areas of interest and influence for Professor Kinney. Over the course of her career, she published more than a dozen articles and book chapters in this area, and her 2002 book Protecting American Health Care Consumers added a discussion of medical malpractice concerns to the conversation, ongoing at the time, about patient protection and reforms in policymaking. In Protecting American Health Care Consumers, she also looked closely at procedural reform and uninsured health care consumers, describing the impending crisis as a “thunderhead on the horizon.” Prior to Professor Kinney’s work, patient protection discussions largely ignored the uninsured. Not surprisingly, when the Affordable Care Act (ACA) was passed in 2010 to address the crisis and make insurance available to everyone, Professor Kinney’s scholarship kept up with the changes; although retired as a faculty member, she published The Affordable Care Act and Medicare in Comparative Context with Cambridge University Press as well as multiple law review articles on the ACA. Her last article, published in 2018, was written in response to the 21st Century Cures Act of 2016. Her interest in health law and her productivity simply never flagged.
The following bibliography is a nearly exhaustive list of Professor Kinney’s publications, excluding only the many short updates (a few paragraphs each) she wrote for the American Hospital Association’s Health Law Vigil newsletter when she worked in the AHA’s Office of Legal and Regulatory Affairs in the early 1980s
Immunity from Suit for International Organizations: The Judiciary\u27s New Que of Separating Lawsuit Sheep from Lawsuit Goats
Get PDFI. Introduction
II. Immunity from Suit in Public International Law
(A) Sovereign Immunity
(i) Sources of Sovereign Immunity
(ii) Legal Theory on Sovereign Immunity
(iii) Doctrinal Evolution of Sovereign Immunity
(B) Jurisdictional Immunity for International Organizations
(C) Sovereign Immunity and Immunity for International Organizations
Domestically
III. Jam v. Int\u27l Finance Corporation:
A New Dawn for International Organizations in the United States
(A) Jam v. Int\u27l Finance Corporation: Majority View
(B) Jam v. Int\u27l Finance Corporation: Dissenting Opinion by Justice Breyer
IV. The Exception that Proves but does not Swallow the rule on Virtually
Absolute Immunity: Criticism of the Majority in the Jam Opinion
from a Textualist Standpoint
(A) A Conceptual Caveat: Jurisprudential Logic
(i) Models of a Proper Jurisprudential Analysis
(B) Text and Textual Consequences
(C) Precedent and History
(D) Structure
(E) Concluding Remarks on Textualism
V. Implications for the Court and International Organizations:
Criticism of the Majority Opinion from a Purposivist Standpoint
VI. Concluding Remark
Afghanistan Legislative Commitments to the WTO: A Deeper Look at Afghanistan\u27s Compliance with TRIPS
Get PDFIn 2016, Afghanistan formally acceded to the World Trade Organization (WTO) to improve its worldwide trading prospects. However, this journey began much earlier. To join the WTO, one of Afghanistan\u27s commitments was to reform its then-existing trademark laws. Intellectual property (IP)-related laws are, in general, one of the fields that countries must reform prior to joining the WTO, so as to be in accordance with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). While Afghanistan has enacted some IPrelated statutes, including the 2009 Law on Trade Marks Registration, it continues to fall short of conforming to TRIPS because it is silent on licensing trademarks, and is ambiguous on both trademark validity and use requirements. Consequently, these kinds of deficiencies will create opportunities to misuse a legal loophole, perpetuate corruption, and discourage foreign investment in Afghanistan. This paper suggests that the Afghan government should fix the deficiencies in TRIPS by modeling the Turkey Industrial Code and the Law of the Republic of Indonesia on Marks, in order to decrease corruption and increase trust by foreign investors. The first part of this paper will briefly introduce the structure of the WTO, then cover the process of Afghanistan\u27s accession to the WTO. The second part will introduce both the old and new Law on Trade Marks Registration of Afghanistan as well as TRIPS. The final part will show the deficiencies of the Afghan statute in relation to TRIPS, the consequences of those deficiencies, and the possible solutions and recommendations for this problem
Teaching Information Privacy Law
Get PDFTeaching information privacy law is exciting and challenging because of the fast pace of technological and legal development and because information privacy law sprawls across a vast array of disparate areas of substantive law that do not automatically connect. This Essay provides one approach to teaching this fascinating, doctrinally diverse, and rapidly moving area of law. Through the framework of ten key course themes, this pedagogical approach seeks to help students find a common thread that connects these various areas of law into a cohesive whole. This framework provides a way to think about not only privacy law, but also law generally
The Preemptive Effect of the CISG on Tort Claims Under US Law
Get PDFThis thesis emphasizes a core concept of the preemptive effect that uniform law may have on other domestic norms. It exemplifies the situation in which the laws and principles of contracts, particularly the uniform laws and principles formulated for transnational sales, can exclude or limit tort liability. This study does not object to the recognition of concurrency of claims under contract and tort law. On the contrary, it accepts that the contracting party’s right to both contract and tort actions is commonly recognized in many legal systems, especially the common law system. Tort liability could be actionable insofar as the actions or words, or even their omission, trigger the requirements of tort claims developed in many legal systems. However, when the uniform law of contracts interacts with tort laws in disputes arising from cross-border transactions, the rules and principles provided under the uniform law, as well as its purposes, justifiably give priority to such a unified law, which is considered a part of binding contract law. In particular, the doctrine of party autonomy legitimately and considerably influences the extent to which the uniform law of contracts affects or modifies liability available under tort law.
Using the relationship between the CISG and US tort law, this thesis illustrates both the situation where uniform contract law and domestic tort law govern the matters in question concurrently, as well as the circumstances in which the uniform law can be said to be dominant.
The principal goal of this thesis is to minimize undermining the CISG’s fundamental objectives, while reducing the risk of excessive encroachment on the domain of tort law. On one hand, this thesis recognizes the importance of the elements of extra-contractual obligation and non-contractual interests under tort law, and thus supports the right to parallel tort claims. On the other hand, subject to policy concerns under tort law, the CISG’s rules and principles, as well as the contractual terms in a particular case, may have a preemptive force that excludes or modifies tortious liability under domestic tort law. In other words, there may be a situation where, because of the CISG’s doctrine or policy concerns, tort liability could be excluded or limited by the application of the CISG, even without an express CISG exclusivity provision.
Based on doctrinal perspective and policy concerns, this study adopts the existing approach of acknowledging the substantive scope and aims of the CISG in determining whether and to what extent the CISG has a preemptive effect on domestic tort claims, or whether there is a concurrence of a domestic tort claim based on domestic law and a contractual claim based on the CISG. The chosen approach recommends that tribunals consider the actual scope of the CISG and its purposes to see whether the alleged matter of the tort claim, in essence, falls under its scope. If it does, the CISG has a preemptive effect on the alleged matter. As compared to other emerging approaches to the CISG’s preemption of a tort remedy, this thesis believes that the chosen approach is the most appropriate and convincing solution, which requires careful analysis. This is because such a solution accords with both the general obligation to give effect to the binding uniform law for international sales, as well as the functions of national tort law in regulating extra-contractual conduct and compensating for the loss of extra-contractual interests, thereby establishing a proper division of functions between the CISG and tort law. Further, this thesis offers opinions on the essential aspects of this approach of acknowledging the substantive scope and aims of the CISG to make the renewed approach more convincing. Rules and opinions given by this thesis are primarily offered to assist tribunals with uniform application of the proposed solution when dealing with the CISG’s preemption and concurrency issues. That is, the principle of acknowledging the CISG’s substantive scope and the policy of attaining its aims are the primary notions underlying the preemptive effect of the CISG on tort remedy. From the doctrinal perspective of acknowledging the CISG’s substantive scope, its preemption issue is essentially the problem of the scope of its application, which could be dealt with through the use of the mechanisms provided by the CISG. To this effect, it is recommended that tribunals adhere to a dynamic method of interpreting the CISG’s provisions, as well as take sales contracts into consideration when finding the scope of the CISG’s application to a situation that fully overlaps with tort law. Considering the CISG’s goals and adhering to its substantive scope, this thesis suggests that the alleged tort claim should be subsumed under the CISG when a fully overlapping situation is established in a particular case. Accordingly, the party to a contract dispute is barred from relying on tort remedy. Further, in solving the issue of the CISG’s preemption of tort remedy, it is important to note that domestic laws play a secondary role, either as part of the forum law on characterization or as part of the applicable tort law. In other words, the rules on doctrinal characterization and the domestic rules and principles on the right to concurrent claims do not have a considerable influence on determining how the CISG interacts with tort law.
Additionally, whenever it appears that the application of the CISG does not preclude the alleged tort claim, this thesis suggests modifying the ancillary rules that govern parallel tort claims to adhere with the CISG’s protective regulations. Such a modification is suggested as a policy concern to prevent circumvention of the CISG’s goals or purposes. Therefore, the modification is limited to occasions when concurrent tort claims are closely connected to the claim under the CISG. Importantly, such equitable adjustments to tort law may be prohibited, depending on the existence of a more highly valued policy underlying tort law, or the recognition of tort law’s mandatory character under the relevant tort law system.
All in all, although there have been attempts by some jurists and judicial bodies to suggest various approaches to solving the problem of the CISG’s preemption of tort claims, this study performs in-depth analysis and provides critiques of those existing solutions. This thesis also put forth a renewed approach, which facilitates international trade, preserves international comity, and justifiably places value on both the CISG’s functions and those of the competing tort laws
