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Sins and Omissions: Slavery and the Bill of Rights
No full textAccording to the conventional story, the Constitutional Convention declined to include a bill of rights in the Constitution because it trusted the enumeration of congressional powers to do the necessary work of limiting the federal government. That conventional story is historically unfounded. It is not supported by contemporary evidence, and it was roundly disbelieved at the time. Although it is not possible to know for certain why (really, for what mix of reasons) the Framers omitted a bill of rights, it seems likely that one major reason was that formulating a bill of rights would have provoked a bitter fight over slavery. In 1787, bills of rights in states that had them were formulated differently depending on the local attitude toward slavery. Drafting a bill of rights for the entire Union would have required choosing between those rival formulations, and any choice would have risked pointed conflict—conflict that might have prevented the Convention from reaching agreement on the Constitution. The choice to omit a bill of rights was likely, at least in substantial part, a means of avoiding that conflict
Cognitive Dissonance in the Antebellum South about the Lawfulness of Slavery
No full textThe institution of slavery, by its nature, was necessarily grounded in law. For whenever a society adjudges one class of persons as free and another as enslaved, law-like norms must exist to identify and distinguish the free from the enslaved. And whenever a society institutionalizes slavery, law-like norms must exist to establish the privileges and disabilities possessed by masters, by the enslaved, and by third persons in relation to masters and slaves. Such master-slave norms may not always be enforced. But, until societies disavow or disremember them, they constitute standards of right and wrong that master-slave societies profess to embrace.
American slaveholding colonies and states implicitly understood slavery’s dependence on law by adopting comprehensive slave codes, enacting thousands of statutes and issuing thousands of judicial opinions that addressed the rights and duties of slaveholders, slaves, and third persons in relation to masters and slaves. Judicial opinions in particular provide unique insight into master-slave norms because, unlike legislators who can promulgate rules without accompanying justifications, judges are institutionally obliged to justify their rulings by referencing established norms or, at least, endeavoring to do so.
This essay examines a set of antebellum southern judicial opinions in the 1850s that I believe reflect growing cognitive dissonance among southern public officials in general and southern judges in particular about the legitimacy of slavery. The cases involve litigants like Dred Scott—persons who had been slaves by law when they lived in the South, who had moved North with their owners where they were deemed legally free, and who then returned South where their owners successfully reclaimed them as slaves. Southern cognitive dissonance stemmed from southerners’ embracing two norms, whose subjects were all Black—namely, one governing Black slaves who lacked valid claims to freedom under southern law, and another governing Black persons who, regardless of whether they were currently held as slaves, possessed valid claims to freedom under southern law. Southern public officials widely and publicly embraced both norms: they supported Black slavery as institutionalized in the South, yet, they simultaneously supported liberty for Black persons who, though they might be currently held as slaves, had valid claims to freedom under southern law, whether by virtue of (i) deriving their free status from descent from maternal ancestors who, rather than having been lawfully enslaved when giving birth, were rightly free; (ii) manumission; (iii) state-ordered emancipation; or (iv) residence in a free state or territory the laws of which southern states recognized
Congress and Shifting Sands in Administrative Law.
No full textIn recent years, we have seen an anti-administrativist turn in the federal judiciary, with the Supreme Court limiting agency power in important respects. These shifting sands in administrative law seem to be motivated, at least in part, by the Court’s perception of the rise of presidential administration and decline in legislative activity. As part of the Widener Commonwealth Law Review Judging in Administrative Law Symposium, this Essay assesses how the Court has responded to concerns about over-presidentialism and then sketches out several ways Congress can respond to reassert itself in federal lawmaking
Preventing Inversions
No full textInversions (transactions in which a U.S. parent corporation becomes a subsidiary of a foreign corporation, but the headquarters remain in the United States) were a major focus of tax policy before the Tax Cuts and Jobs Act.1 There have been no inversions since the TCJA, but that is more a result of the current rate structure. If the corporate tax rate is increased, inversions may come back, and the time to act to prevent that is now
Tying Law for the Digital Age
No full textTying arrangements, a central concern of antitrust policy since the early days of the Sherman and Clayton Acts, have come into renewed focus with re-spect to the practices of dominant technology companies. Unfortunately, tying law’s doctrinal structure is a self-contradictory and incoherent wreck. A con-ventional view holds that this mess is due to errant Supreme Court precedents, never fully corrected, that expressed hostility to tying based on faulty economic understanding. That is only part of the story. Examination of tying law’s origins and development shows that tying doctrine was built on a now-dated paradigm of what constitutes a tying arrangement. In its origins during the industrial age, tying meant the leverage of patent rights over one good to impose requirements contracts forcing the purchase of a second, unpatented good. That paradigm no longer describes the vast majority of tying arrangements challenged under the antitrust laws. Instead, digital-age tying claims tend to involve product design decisions, the integration of technologies, the bundling of components, considerations of product functionality and performance, and the economic terms on which companies can obtain a return on their research and development investments. Correcting the mess in tying law requires not only updating economic learning, but also appreciating the patterns of behav-ior to which tying standards are applied
Feedback Loops: Going Negative
No full textAelet Fishbach is a professor at the University of Chicago Booth School of Business who has studied how people seek out and process negative feedback. One of the ways she has done this is through a classroom exercise in which she divides the students into two groups: feedback givers and feedback receivers. The givers are told to pair up with a receiver and communicate the following feedback in a one-on-one setting: The person\u27s performance s unsatisfactory; improvement is needed; and there are concrete ways they can get on the right track
Sourcing Derivatives: Time to Reverse the Rule?
No full textIn their excellent Tax Notes article on the application of withholding taxes on derivatives, Lorenz F. Haselberger and Michael B. Shulman write that:
A taxpayer entering into a derivative may derive income of a kind that is different from the kind of income that would have been realized had the taxpayer instead acquired the underlying asset, resulting in different U.S. withholding tax treatment.
For example, when a foreign taxpayer enters into a swap referencing an equity security or interest rate, amounts it receives that correspond to dividends or interest generally are characterized as periodic payments on a financial contract rather than as dividends or interest for federal income tax purposes. This characterization can result in different withholding treatment because swap payments generally are sourced to the jurisdiction of the recipient, whereas dividends and interest generally are sourced to the jurisdiction of the payer. . . .
In some cases, Congress has enacted legislation to conform the withholding tax treatment of income from the underlying asset and the treatment of the corresponding income from a derivative referencing the underlying asset. For example, under section 871(m), enacted in 2010, the withholding treatment of dividend equivalent amounts payable or imputed with respect to certain U.S. equity derivatives generally conforms to the withholding treatment of dividends paid on the underlying physical equity security. In the absence of a provision like section 871(m), however, there is no overriding principle that would require withholding tax on derivative income simply because withholding would apply to income from the underlying asset. [Emphasis added.]
My question is, why is there no such overriding principle
Limitation on Benefits or Principal Purpose Test? Part 1
No full textAn interesting recent column by Tax Notes’ Lee Sheppard criticizes the principal purpose test (PPT) that was adopted as a minimum standard in the OECD’s base erosion and profit-shifting project 1.0 and has since been incorporated into many tax treaties through the multilateral instrument. Sheppard explains:
Readers will recall that BEPS 1.0 had a set of minimum standards for participating countries, one of which was a treaty amendment to cement the purpose of the treaty to prevent both double taxation and double nontaxation. Participants could choose between a seemingly simple, subjective principal purpose test (PPT) and a complicated but objective U.S.-style limitation on benefits clause. Most countries, with some admitted strongarming by the OECD, chose the PPT, which had never been put to the test in court.
Sheppard then argues that “the recent changes to bilateral tax treaties in compliance with BEPS 1.0 minimum standards are likely to lead to more litigation,” and she uses the India-Mauritius treaty as a case study
The Bounds of Moore: Pluralism and State Judicial Review
No full textIn Moore v. Harper, the Supreme Court rejected a maximalist version of the “independent state legislature theory” (ISLT), invoking state judicial practices both before and after the Constitution was ratified. This piece uses Moore’s method to examine another variation on the ISLT, one pushed most recently by Justice Brett Kavanaugh and before him by Chief Justice William Rehnquist. The Rehnquist-Kavanaugh version of the ISLT would empower federal courts to review state officers’ interpretation of state laws regarding federal elections. But the logic of Moore is fatal to that potential version of the ISLT. The Rehnquist-Kavanaugh version of the ISLT contemplates a kind of federal-court review of state officers’ interpretation of state election laws that is not rooted in history or tradition, given the pluralist interpretive traditions that existed in the states both before and after the drafting and ratification of the original Constitution. It is also fatally inconsistent with basic principles of both federalism and democrac
Valuing Social Data
No full textSocial data production—accumulating, processing, and using large volumes of data about people—is a unique form of value creation that characterizes the digital economy. Social data production also presents critical challenges for the legal regimes that encounter it. This Article provides scholars and policymakers with the tools to comprehend this new form of value creation through two descriptive contributions. First, it presents a theoretical account of social data, a mode of production that is cultivated and exploited for two distinct (albeit related) forms of value: prediction value and exchange value. Second, it creates and defends a taxonomy of three “scripts” that companies follow to build up and leverage prediction value and explains their normative and legal ramifications