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Calculating the Harms of Political Use of Popular Music
No full textWhen Donald Trump descended the escalator of Trump Tower to announce his 2016 presidential bid, Neil Young’s “Rockin’ in the Free World” blared from the loudspeakers. Almost immediately, Young’s management made clear that the campaign’s use of the song was unauthorized. Neil Young was not alone. Trump drew similar objections from dozens of artists during his first two presidential bids. But as a matter of copyright law, it is unclear whether artists can prevent their songs from being played at campaign rallies
Can Congress Give Unaffected Taxpayers Standing
No full textA recurring problem in tax law arises when the IRS promulgates a regulation or a notice that is too favorable to taxpayers.1 The problem is that nobody has standing to challenge the regulation. The IRS cannot challenge its own regulation, and taxpayers affected by the regulation have no interest in challenging it (and even if they did, they cannot show a concrete injury sufficient to establish standing). Congress may intervene, but that is rare for a taxpayer-favorable regulation (indeed, Congress sometimes intervenes to block IRS attempts to roll back its own regulations). Taxpayers unaffected by the regulation do not have standing to protect the fisc, even though undertaxation of other taxpayers may result in increasing the tax burden on them
The American Antimonopoly Tradition: Origins, Contradictions, Transformations
No full textProponents of antitrust reform argue for the rediscovery of an American antimonopoly tradition that predated the Sherman Act by centuries and suggests the reimagination of a more robust contemporary policy against concentrated economic power. But historically there have been a number of distinct and often contradictory strands of American antimonopoly. The American colanists inherited a weak, recent, and largely invented antimonopoly common law tradition focused on exclusive grants of privilege from the crown. In the nineteenth century, antimonopoly became a generative and ubiquitous concept in state legislatures and courts, but one with multiple, inconsistent meanings that evolved in the decades leading up to the Sherman Act. Initially, antimonopoly was primarily focused on the grant of exclusive privileges by legislatures and hence served as a limitation on state power. Later; antimonopoly became simultaneously statist and anti-statist, both a source of state regulatory power and an anti-regulatory doctrine. In parallel, the primary meaning of monopoly shifted from state intervention in the market to privately acquired economic power. Courts pivoted from defining monopoly as necessarily involving a state grant to necessarily not involving a state grant. The Sherman Act enacted this more recent sense of antimonopoly as federal law, but it did not terminate the contestation between the different senses of antimonopoly that continued into the twentieth century and beyond. There is not a unified American antimonopoly tradition, but rather a set of competing impulses or traditions loosely organized under the antimonopoly banner
Why Did the IRS Win? A Remarkable Year in Tax Litigation, Part 2
No full textIn my previous column, 2023 was a remarkably good year for government litigators in tax cases. That column focused on two transfer pricing cases (3M and Coca-Cola). This column will focus on two other government victories (YA Global and Liberty Global)
Rethinking Innovation at FDA
No full textIn several controversial drug approval decisions in recent years, the Food & Drug Administration (“FDA”) has publicly justified its decision partly on the ground that approving the drugs in question would support innovation in those fields going forward. To some observers, these arguments were surprising, as the Agency’s determination whether a drug is “safe” and “effective” does not seem to depend on whether its approval also supports innovation. But FDA’s use of these innovation arguments in drug approval decisions is just one example of the ways in which the Agency has come to make many innovation-related judgments as part of its regulation of drugs. In this Article, we investigate the broad set of innovation-related judgments that FDA has been making and argue that there are serious concerns with the major innovation role FDA has been playing, at least as the Agency is currently constituted. We conclude that FDA should not separately weigh innovation in decisions about a product’s safety and effectiveness. In other areas, health policymakers could reasonably decide that FDA should have either a larger or a smaller role than it currently does in shaping the development of novel drugs. But policymakers should do so while thoughtfully considering both the opportunities and challenges of FDA actively considering innovation incentives in its decisions; those challenges have been rarely considered in the literature and policy discourse. Further, we argue that whether policymakers aim to bolster or limit the ways that FDA considers innovation in its regulatory decisions, changes are needed to the Agency’s structure to support its ability to make reasoned judgments based on relevant expertise
Fifty Years of \u27Cut To Grow\u27: How Changing Narratives around Corporate Tax Policy Have Undermined Child and Family Well-Being
No full textWhat follows in this report is an assessment, though not exhaustive, of the central worldviews and set of assumptions driving key US corporate tax reform moments in history—and their consequences for the well-being of children and families in the US. Though political narratives of all kinds are never cleanly chronological (and this remains true of those pertaining to corporate taxation and well-being policies), we aim to build on existing understanding of how dominant narratives come to be and how they, to the extent that they do, drive corporate tax policy outcomes in the US. Looking back over the past 50 years of corporate tax reforms demonstrates just how entrenched the neoliberal narrative around tax cuts has become in policymaking. The supremacy of a “cut-to-grow” mentality has made it difficult for a more expansive, progressive vision of tax reform to break through—contributing to a decades-long stalemate in efforts toward real comprehensive corporate tax reform and hindering the government’s ability to make needed investments in child and family well-being policy. As such, this paper concludes with reflections on the political economy of taxing corporations, and how a more holistic understanding of the revenue and regulatory roles, in particular, of corporate tax policy might help us overcome what has become a 40-year stalemate in efforts toward real reform
On the Genealogy of Intimate Digital Harm
Get PDFA review of The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age. By Danielle Keats Citron
Justice by Means of the Administrative State
Get PDFA review of Justice by Means of Democracy. By Danielle Allen
Shutting Out Noise and Understanding Artificial Intelligence
Get PDFA review of Noise: A Flaw in Human Judgment. By Daniel Kahneman, Olivier Sibony and Cass R. Sunstein, and You Look Like a Thing and I Love You: How Artificial Intelligence Works and Why It’s Making the World a Weirder Place. By Janelle Shane