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The Case for Targeted Location Incentives
No full textBoth the global intangible low-taxed income provisions of the Tax Cuts and Jobs Act and the substance-based income exclusion of pillar 2 provide incentives to shift real investment to lowtax locations. Under GILTI, a 10 percent return on tangible assets of the subsidiaries of U.S. multinationals (qualified business asset investment) is exempt from tax. Under pillar 2, the top-up tax calculation excludes 10 percent of payroll costs and 8 percent of the carrying value of tangible assets in a jurisdiction
Peripheral Detention, Transfer, and Access to the Courts
Get PDFIn the last forty years, immigration detention in the U.S. has grown exponentially, largely concentrated in the southern states and outside of the country’s metropoles. In turn, federal immigration officials routinely transfer immigrants from their communities to remote jails and prisons hundreds, if not thousands, of miles away, often in jurisdictions where the law is more favorable to the government. These transfers are conducted without notice or process and frequently occur on weekends or in the predawn hours, when offices are closed and interested parties are lucky to access voicemail.
Federal immigration officials’ use of peripheral detention and transfer significantly affects immigrants’ access to the courts and their ability to raise detention challenges. Lurking beneath these issues lies a seemingly technical Supreme Court decision relied on by the government to seek dismissal of habeas actions filed by immigrant petitioners who have been ferried to faraway jails and prisons.
In Rumsfeld v. Padilla, the Supreme Court held that the “default rule” in a habeas action challenging present physical confinement is that it must be brought in a petitioner’s “district of confinement” and that a petitioner can only name a single respondent: their “immediate custodian.” However, the history and development of immigration detention and of the habeas statute offer important insights into present debates about the primacy of Padilla in the context of transfer. A mining of these histories unravels the foundational premises on which Padilla relied and encourages us to question mechanical rules that silo immigrant habeas actions in faraway fora, away from evidence, witnesses, community, counsel, and the events giving rise to the detentions themselves
Comity & Federalism in Extraterritorial Abortion Regulation
Get PDFOn June 24, 2022, the Supreme Court decided Dobbs v. Jackson Women’s Health Organization and held that states may regulate abortion in whatever manner they wish. In the wake of Dobbs, commentators and laypersons have focused primarily on its implications for reproductive rights and other fundamental rights—such as gay marriage. Less often discussed are the questions that arise regarding state extraterritorial jurisdiction. Since Dobbs, a patchwork of laws has developed: pro-life states have placed greater restrictions on abortion, while pro-choice states have sought to expand abortion access. Questions have arisen regarding whether and to what extent states may regulate the out-of-state conduct of pregnant women who seek abortions, those who provide assistance to pregnant women seeking to terminate a pregnancy, and abortion providers. This patchwork has the potential to generate interstate conflict and creates new urgency for thinking about the legal and constitutional principles that constrain state extraterritorial legislative jurisdiction. This Article first outlines each states abortion laws, then explores state legislative jurisdiction, and the various barriers that constrain expansive legislative jurisdiction, and finally identifies why expansive legislative jurisdiction would be detrimental to both the Union and individual liberties. Ultimately, the current doctrine has gaps that create risks for comity among the states, and for individuals and businesses attempting to conform to the law of a given state. These gaps should be closed, and should be closed in a way that preserves horizontal federalism
Consumer Privacy and the \u3cem\u3eDobbs\u3c/em\u3e Disruption
Get PDFThe right to reproductive privacy is under attack in the United States, and it is losing ground. Dobbs v. Jackson Women’s Health Organization, the Supreme Court’s 2022 decision that overruled Roe v. Wade’s constitutional protection of abortion and jeopardized privacy rights by proxy, reflects this losing posture. Scholarship in reproductive privacy varyingly critiques federal privacy initiatives, evaluates regulatory interventions, and proposes civil rights frameworks in response to Dobbs. This Article, however, pinpoints how Dobbs created a gaping hole in state consumer privacy laws even as they propagated across the United States. Currently, there are no state consumer privacy laws that specifically prohibit a company from sharing reproductive health information with government officials, law enforcement, or regulatory bodies. Thus, state laws protecting doctors’ and patients’ privacy are critical. Yet state legislatures have so far failed consumers, and some state efforts have even backfired, putting seekers and providers of reproductive healthcare—even those in states where abortion is legal—at risk for criminal prosecution.
In light of that conceptual framework, this Article proposes that state legislatures develop new privacy laws or amend existing consumer privacy laws to include three fundamental protections: (1) an explicit prohibition against disclosing reproductive healthcare information to government officials, law enforcement officers, and regulatory bodies; (2) a limited private right of action for violation of that prohibition, with a regulatory regime to target the most serious perpetrators of reproductive privacy violations; and (3) statutory damages for abusive privacy requests and nuisance litigation against providers of reproductive healthcare. Incorporating these three core elements into state privacy laws will better protect those seeking or providing legal reproductive healthcare against anti-abortion activism in a post-Dobbs United States
Solving the Stranded Asset Problem of Retiring Coal Plants: An Evaluation of Regulatory Approaches
Get PDFMeeting the Biden administration\u27s goal of cutting greenhouse gases by at least 50 percent from 2005 levels by 2030 will necessarily require transitioning the U.S. energy system away from carbon-intensive fossil fuels like coal. However, coal plants that are retiring early in states with regulated electricity markets usually still have undepreciated book value that has not yet been recovered from ratepayers. If not handled correctly, these stranded assets could have financial consequences for utility companies and cause them to actively oppose the energy transition. This Note aims to evaluate possible solutions to this problem. Through the prism of ratemaking legal standards, it will examine the four most commonly proposed approaches: accelerated depreciation, the creation of regulatory assets, cost disallowance, and ratepayer-backed securitization. While finding that there is no one-size-fits-all solution, this Note will nonetheless conclude that ratepayer-backed securitization shows the most promise because it can fairly compensate utility companies, control rate increases, and accelerate the energy transition
Should Racially Vulnerable Victims Show Mercy?
No full textOn June 17, 2015, twenty-one-year-old Dylann Roof entered the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, sat, and prayed with nine congregants for at least an hour before pulling out a handgun and killing Cynthia Hurd, Susan Jackson, Ethel Lance, DePayne Middleton-Doctor, State Senator Rev. Clementa Pinckney, Tywanza Sanders, Rev. Daniel Simmons, Sharonda Singleton, and Myra Thompson.\u27 He left three survivors, explicitly so they could tell the story of his killings. Roof did so for his own demented reasons; his racist rage was laid out publicly in an online manifesto, and he hoped his murders would begin a race war. Roof was ultimately convicted of a range of murder and hate crimes
The Origins of the Major Questions Doctrine
No full textIn a series of recent cases, the Supreme Court has invoked the newly named “major questions doctrine” to strike down agency regulations that protect public health and the environment. Several Justices have argued that while the name “major questions” may be new, these decisions are simply the latest iteration in a longstanding effort of the courts to curtail the explosive growth of the administrative state since 1970. The first paradigmatic example of this line of cases is the 1980 “Benzene” case, in which the Supreme Court set aside the Occupational Safety and Health Administration (OSHA)’s new workplace standards for the toxic chemical benzene
Federal Indian Law as Method
No full textMorton v. Mancari is well-known in Indian law circles as a foundation for the tribal self-determination era, which is generally understood to have begun in the late 1960s and early 1970s. The case involved an Act of Congress that required the federal “Indian Office” (now called the Bureau of Indian Affairs) to grant preference in employment to “Indians.” The case is typically understood as the basis for analyzing how federal statutes that apply exclusively to Indian people do not implicate the anti-discrimination principles of the United States Constitution. This understanding of the case, while correct, is too narrow
A Fresh Look at Judicial Remedies in EU Equality Law and Beyond: The Untapped Possibility of Structural Injunctions.
No full textThis article proposes a shift in thinking about judicial remedies (or “sanctions”), from anti-discrimination law to equal pay and beyond.We suggest the currently preferred remedies – one-off declarations, compensation, fines, and simple orders to obey the law – may be insufficient when confronting a recalcitrant institution, complex violations, and broad, ongoing harm. In such cases, we suggest considering a remedy long overlooked in Europe: a “structural injunction”, i.e. ordering changes to an offending organization’s structure, processes, or rules. We argue that under certain circumstances, an injunction, including a structural injunction, may be appropriate or required under EU law to remedy persistent (including “systemic” or “structural”) organizational discrimination. After considering the injunctive demands of Union law, and the appropriateness of structural injunctions, we examine their compatibility with national constitutional traditions. Finally, we analyse different forms of structural injunctions to show how courts may issue them – in what we call their “modern” form – while minding the judiciary’s constitutional role and institutional competence. This article seeks to inform current theory and practice from legislative drafting to enforcement of European equality law, as well as other areas where complex or systemic organizational violations persist. Comparative analysis informs our argument
Has Cost Sharing Outlived Its Usefulness?
No full textIn her thoughtful column on cost sharing, Mindy Herzfeld explains the history of costsharing arrangements (CSAs) going all the way back to 1966, and then asks several questions, including: “Should the existing CSA regs be scrapped in favor of another regime, or simply eliminated as a choice for taxpayers?