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Voter Harassment and the Limits of State and Federal Power
No full textActs of voter harassment are often difficult to prevent. One longstanding, albeit underused, tool for addressing such harassment is found in section 11(b) of the Voting Rights Act (VRA). Continued use of the provision, however, is threatened by recent decisions restricting private enforcement of the VRA. This Essay examines one challenge to such enforcement, exploring the linkage between section 11(b)’s prohibition on voter intimidation and the enforcement of constitutional voting guarantees, on which private enforcement of the provision presently depends. It invites consideration of the idea that this linkage is sufficient and private enforcement is appropriate because section 11(b) provides a remedy when state and local efforts to operate equitable voting processes fall short
The Editorial Board\u27s Stories of War and Recovery
No full textWhat follows are real-world experiences my fellow editors at Litigation journal shared with me. As much as misery loves company, we litigators love war stories more and, boy, do we have some! They show us that, when faced with unexpected catastrophes, we have only one option: Get to work. Do the math. Solve the problem. And then solve the next one
Statutory Liquidation
No full textWhen might practice by the political branches settle the meaning of legal text? That question has mostly been taken up in the constitutional setting, with one strand of scholarship taking inspiration from Madison\u27s statement in Federalist No. 37, that {a}ll new laws ... are considered as more or less obscure and equivocal until their meaning be liquidated and ascertained by a series ef particular discussions and aqjudications. The prospect that post-enactment practice might liquidate the meaning of statutory text has been comparatively underexamined. That\u27s not surprising. Under modern textualism, post-enactment considerations would seem to have little place. And under Chevron although courts deferred to executive branch actors) those actors lacked the ability to finally settle) or fix) statutory meaning -- a power usually associated with liquidation.
But in a spate of recent cases involving agency authority, the Supreme Court has embraced the idea that extrajudicial practice may settle the meaning of statutory text. In cases associated with the new major questions doctrine, the Court has confronted seemingly broad statutes only to narrow them, placing heavy reliance on the Court\u27s judgment that the agency action under review represented a deviation from past agency practice that had effectively liquidated the statutes in question. And in Loper Bright the Court quoted approvingly from both Federalist No. 37 and Noel Canning, a case closely associated with constitutional liquidation, in service of its conclusion that longstanding and consistent agency interpretations are due special respect, especially when those interpretations are issued contemporaneously with the statute. By contrast, interpretations that break from the agency\u27s prior views or are otherwise novel would seem to receive a kind of negative deference.
This Article traces the emergence of statutory liquidation in the Supreme Court\u27s case law and explores it critically. It unpacks how statutory liquidation effects the constitutional separation of powers. And it tentatively explores various theories that may ground statutory liquidation. It argues that all such theories fall short in that they are either incomplete, fail to cohere with the Court\u27s broader commitments, or do not justify features of statutory liquidation reflected in the emerging practice
The Birth of the Franchised Dealer Model
No full textChapter 1 traces the history of the franchise dealer model of car distribution, from the early wild west days of the internal combustion automobile to the political confrontations between Detroit’s Big Three and the “mom and pop” car dealers during the mid-twentieth century. The chapter examines the thinking of legendary management figures such as Henry Ford and Alfred P. Sloan, explains the dealer protection rationale behind state franchise dealer laws, and shows how the legacy car companies largely acquiesced in those laws until Tesla’s entry onto the scene
Should Congress Reform The Accumulated Earnings Tax?
No full textIn this installment of Reflections With Reuven Avi-Yonah, Avi-Yonah explains why the shifting landscape of the corporate tax rate requires congressional intervention. The Tax Cuts and Jobs Act 2017 permanently cut the corporate tax rate from 35 percent to 21 percent, and the Republican victory in the 2024 presidential election means that the rate is unlikely to be raised in the next four years. This means that there is, once again, a large disparity between the top individual tax rate of 37 percent (scheduled to increase to 39.6 percent in 2026 unless Congress acts) and the corporate rate. The corporate rate is also significantly lower than the 29.6 percent rate on income earned through passthroughs that qualify for the section 199A deduction
Mobility-Restricting Covenants in Business Contracts: The Case of Franchising
No full textSeveral studies show that restrictive covenants in employment contracts, such as noncompete agreements, may affect employees in detrimental ways, including by reducing mobility and suppressing wages. While such concerns are real, these clauses also have the potential to serve legitimate business purposes by helping companies protect valuable information, which can encourage investment and training and enhance social welfare. This paper explores the use of several types of covenants, including noncompetes but also confidentiality and post-relationship non-recruitment clauses, in franchise contracts, an important and accessible category of business contracts. Many of these contracts impose restrictive covenants on franchisees but also on other individuals, notably franchisees\u27 business partners and family members, and in some cases, their managers and employees. Patterns in the use of these covenants across these individuals are telling, suggesting that in business contracts, the information-protection role of such clauses may be important
Sanctioning Negligent Bankers
Full text linkOver just one week in 2023, depositor runs at a few U.S. banks threatened a worldwide banking crisis. Afterwards, the United States would suffer three of the biggest bank failures in the nation’s history; in Europe, Credit Suisse became the largest financial institution to fail since the 2007-2008 Global Financial Crisis. Stunned by this lightning-fast panic, lawmakers, regulators, and academics have called for significant changes to the U.S. financial regulatory framework. Leading among these proposals are calls to improve supervisory oversight of banks, to tighten existing regulations on banks, and to increase deposit insurance limits. But these proposals alone are insufficient to stop the next wave of bank collapses, and they might even exacerbate a central problem contributing to bank runs: the bankers themselves. Combining insights from banking regulation, corporate enforcement, and insurance law, we argue that proposed banking reforms should be paired with a credible sanctions regime imposed upon negligent bankers. Our approach would push oversight duties back into the C-suite through a civil penalty designed to disgorge compensation from a bank executive whose negligence substantially increases the risk of a bank collapse. We defend the theoretical basis for such an approach, including why a civil penalty, rather than criminal punishment, is the best solution to this problem; identify key features of our proposed liability regime, distinguishing it from previous proposals to hold bankers accountable; and then identify and evaluate preliminary implementation considerations for Congress and regulators to consider
Transparency, Accountability, and Influence in the International Investment Law System
Full text linkThis article offers the first interdisciplinary critique of transparency in international investment law (“IIL”) that draws on transparency-skeptical and accountability scholarship in political science and public administration. Not only has the expansive IIL literature overlooked these disciplines, but much of it fails to define the core concept of transparency. Building on contributions from the fields of administrative law, international relations, and system theory in classic political science, we provide a novel functionalist account of transparency that traces a line from transparency to accountability to influence in the IIL system.
We make three arguments. First, transparency involves access to data that must be interpreted by an enabled target audience. Second, transparency is not a good in itself but rather a means of advancing accountability, which in turn is designed to promote influence in the system; that is, transparency and accountability are both secondary rather than primary values. Third, transparency is best understood at a system level; a system framework highlights the multiplicity of actors making divergent demands for the creation or application of IIL rules and illuminates the distribution of influence and how that distribution may be shifted by systemic reforms.
We apply the lessons from our conceptual discussion to explain the limited utility of recent transparency reforms in investor-state dispute settlement (“ISDS”) by key IIL institutions such as the United Nations Commission on International Trade Law (“UNCITRAL”), insofar as they rely on the public as the primary actor and agent of change in the IIL system. Beyond transparency-specific reforms, we also consider how our theory bears on broader ISDS reforms currently under review by UNCITRAL Working Group III, which has embarked on a historic mission to reform ISDS from the ground up
Must a Consumption Tax be Regressive?
No full textFormer Treasury Secretary Larry Summers once explained why the United States is the only developed country that has not yet adopted a value-added tax: “Liberals think it’s regressive and conservatives think it’s a money machine.... If they reverse their positions, the VAT may happen.” It is true that the VAT is a money machine. It has been estimated that each percentage point of a broad-based U.S. VAT would raise 1 trillion each year, and a 25 percent VAT (less likely, but equal to the top EU rate) would raise 2.7 trillion in individual income taxes. Thus, a 25 percent VAT would raise about as much as the individual income tax, and the revenue from the VAT is much more reliable and less cyclical than the revenue from the income tax. That is why the states adopted sales taxes during the Great Depressio
Gregory, Textualism, and Tax Shelters
No full textIn this installment of Reflections With Reuven Avi-Yonah, Avi-Yonah suggests that courts should adopt a consequentialist approach to tax shelter litigation that would acknowledge the long- term risks of enabling tax shelters and seek to prevent their recurrence. In his excellent article on Gregory v. Helvering, David Elkins says that the common assumption that the case was about abuse of the tax-free reorganization provisions of the code is mistaken. Therefore, he argues, both Judge Learned Hand and the Supreme Court were wrong when they focused on whether the transaction was a “reorganization” as intended by Congress. Instead, they should have focused on whether what Mrs. Gregory achieved was just the most tax- efficient choice among several alternatives and was based on problems with the underlying statute and regulations, rather than on abusive tax avoidance