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Pillar 2 and Specific Benefits for Multinationals
No full textIn a recent column, Tax Notes’ Martin Sullivan asked whether a country that wishes to neutralize the effect of pillar 2 on its investment incentives can get around the OECD prohibition on a multinational enterprise receiving what amounts to a refund of the pillar 2 tax it pays to that country. He writes that:
It would make a mockery of the pillar 2 taxation system if an investment hub imposed a 15 percent minimum tax on a company — thereby shielding profit in that hub from other jurisdictions’ pillar 2 tax — and then, through a separate mechanism, unconditionally returned the new revenue dollar-for-dollar to the taxpaying company. Pillar 2 model rules prevent that. But what if the benefits offsetting the tax are not dollar-for-dollar but instead merely approximate the revenue raised from the new tax?
And what if it’s easy for a company to satisfy the conditions for receiving the benefit — perhaps by doing business the same way it did before? Should the collateral benefits — whether deliberately or by coincidence offsetting the burden of the new tax — prevent other countries’ imposition of pillar 2 tax on investment hub profits
Effects from Moore: Does the Corporate Tax Require Realization?
No full textThis paper explores the history of the corporate tax as an excise versus income tax and explains potential effects from the Moore and Altria cases
Littlejohn’s Unjust Tax Sentence
No full textOn May 1 Charles Littlejohn began serving a five-year prison sentence for unauthorized disclosure of tax information. His crime is described by the Department of Justice as follows: According to court documents, Charles Littlejohn, 38, of Washington, D.C., while working at the IRS as a government contractor, stole tax return information associated with a high-ranking government official (Public Official A). Littlejohn accessed tax returns associated with Public Official A (and related individuals and entities) on an IRS database after using broad search parameters designed to conceal the true purpose of his queries. He then uploaded the tax returns to a private website in order to avoid IRS protocols established to detect and prevent large downloads or uploads from IRS devices or systems. Littlejohn then saved the tax returns to multiple personal storage devices, including an iPod, before contacting News Organization 1. Between around August 2019 and October 2019, Littlejohn provided News Organization 1 with the tax return information associated with Public Official A. Littlejohn subsequently stole additional tax return information related to Public Official A and provided it to News Organization 1. Beginning in September 2020, News Organization 1 published a series of articles about Public Official A’s tax returns using the tax return information obtained from Littlejohn. . . . In July and August 2020, Littlejohn separately stole tax return information for thousands of the nation’s wealthiest individuals. Littlejohn was again able to evade detection by uploading the tax return information to a private website. In November 2020, Littlejohn disclosed this tax return information to News Organization 2, which published nearly 50 articles using the stolen data. Littlejohn then obstructed the forthcoming investigation into his conduct by deleting and destroying evidence of his disclosures
Two Takes on Administrative Change from the Roberts Court
No full textIn Loper Bright Enterprises v. Raimondo, the Supreme Court finally did what many long hoped (or feared) it would do: overrule Chevron v. Natural Resources Defense Council. Chevron instructed courts to defer to an agency’s interpretation of an ambiguous statutory provision, provided the interpretation was reasonable. Chevron, according to Justice Kagan, had “served as a cornerstone of administrative law” and “the warp and woof of modern government, supporting regulatory efforts of all kinds—to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.” Not surprisingly, statutes governing such matters contain quite a number of ambiguities. Under Chevron, agencies could rely on their expertise and policy views to resolve them. Under the new regime ushered in by Loper Bright, courts will resolve ambiguities by determining what the “best” interpretation of the statute is.
In many respects, Loper Bright was consistent with emergent patterns in the Roberts Court’s jurisprudence. As Justice Kagan wrote in her dissent, “it is impossible to pretend that today’s decision is a one-off, in either its treatment of agencies or its treatment of precedent.” Loper Bright, like many Roberts Court decisions, illustrated “the Court’s resolve to roll back agency authority, despite congressional direction to the contrary.” The day before Loper Bright, for example, the Court issued a decision holding that the Seventh Amendment prohibited the Securities and Exchange Commission (SEC) from levying civil penalties for securities fraud using the agency’s internal adjudicative processes. It also issued a decision pausing enforcement of the Environmental Protection Agency’s (EPA) Good Neighbor Rule—designed to combat interstate pollution—by deploying an aggressive form of arbitrary-and-capricious review. Loper Bright also continued the Roberts Court’s pattern of overruling precedent, either formally in an opinion, or effectively doing so by artificially narrowing or cabining previous cases.
But in at least one respect, Loper Bright marked a departure from a throughline in some of the Roberts Court’s other decisions. In overruling Chevron, the Court displayed open skepticism and even hostility to the notion that regulatory agencies could change their interpretations of ambiguous statutory provisions from presidential administration to presidential administration based on differing policy views. Yet in the Court’s presidential removal cases, the Court has insisted that Presidents must have the power to remove agency heads to facilitate the President’s ability to influence agencies’ policy positions and reverse positions with which the new President disagrees. That puts these two lines of decisions in tension with one another: whereas in the removal cases, the Court views itself as ensuring that a President holds broad influence over an agency’s policy positions, Loper Bright restricts the degree to which agencies can adapt based on the views of the President. This essay outlines this tension before surveying some possible ways to resolve it
Legally Magic Words: An Empirical Study of the Accessibility of Fifth Amendment Rights
No full textFifth Amendment case law (including Miranda v. Arizona) requires that individuals assert their right to counsel or silence using “explicit,” “clear,” and “unambiguous” statements—or, as some dissenting judges have lamented, using “legally magic” words. Through a survey of 1,718 members of the U.S. public, we investigate what ordinary people believe it takes to assert the right to counsel and the right to silence. We then compare their perceptions against prevailing legal standards governing invocation.
With respect to the right to counsel, the survey results indicate that members of the public have a uniformly lower threshold for invocation than do courts. Statements that courts have deemed too ambiguous (e.g., “I’ll be honest with you, I’m scared to say anything without talking to a lawyer.”) are perceived by a large majority of survey respondents as invoking the right to counsel. With respect to the right to silence, the survey results suggest that people overwhelmingly believe that remaining silent for several hours constitutes invocation of the right to silence and expect that their silence cannot be used against them—including in situations where, in fact, it can be. Across an array of fact patterns and demographic subgroups, respondents consistently set the bar for invoking Fifth Amendment rights lower than courts.
The stark disconnect between what the public takes as sufficient to invoke these rights and what courts hold as sufficient suggests that the rights to counsel and silence are largely inaccessible to ordinary people. Notably, standard Miranda warnings do not include instructions regarding how one must speak in order to invoke those rights. We conclude that when courts set the threshold for invocation above where the average citizen believes it to be, they effectively place key procedural rights out of reach
The Needless Search for a Founding-Era Hearsay Definition
Get PDFModern Confrontation Clause doctrine permits only unconfronted “out-of-court statements that would have been admissible in a criminal case at the time of the founding.” To operationalize this concept, the Supreme Court identifies “testimonial hearsay” as the Clause’s primary concern. Its opinions regularly dive into the historical record to refine what counts as “testimonial” but ignore that record in defining “hearsay.” This omission cannot last. Cases in the lower courts, and one on the Court’s recent docket, concern testimonial but (arguably) non-hearsay statements. And while confrontation jurisprudence is supposed to be tied to founding-era evidence law, the “hearsay” definition, casually referenced by the Court in its opinions so far, is a modern innovation. In future cases, the Court will have to identify a founding-era hearsay definition or chart an alternate path. Since there was no precise definition of hearsay in 1791, this essay proposes an alternate path: reframing the Clause as prohibiting unconfronted “testimonial statements” (not “testimonial hearsay”). It also suggests that the Court’s insight regarding the unobjectionable nature of non-hearsay can be incorporated into the definition of “testimonial.” The current test for whether a statement is “testimonial” focuses exclusively on the context in which the statement arose. A more robust test would examine both the statement’s context and the subsequent use of that statement at trial. With the proposed addendum, an out-of-court statement would only be “testimonial” if generated in a testimonial context and introduced to prove the declarant’s assertions. This broader inquiry neatly parallels the Sixth Amendment text, identifying circumstances when an out-of-court speaker truly bears witness at trial and thus becomes a “witness against” the accused. And this inquiry eliminates any need to address the often-unanswerable question of whether a statement would have been “hearsay” in 1791
Regulating Algorithmic Harms
Get PDFIn recent years, the rapid expansion of artificial intelligence (AI) innovations has led to a rise in algorithmic harms—harms emerging from AI operations that pose significant threats to civil rights and democratic values in today’s technological landscape. A facial recognition system for improving criminal detection wrongly collected sensitive personal data and flagged racial minorities as shoplifters. A risk-prediction algorithm adopted to identify patients denied medical treatment to Black individuals with poor health conditions. A social media algorithm intended to boost social engagement exacerbated addictive behavior and mental illness in teenagers. These harms are becoming increasingly ubiquitous yet often manifest in small and invisible forms, enabling them to aggregate while eluding regulatory oversight. Secretly and cumulatively, they affect millions to billions of individuals.
This Article constructs a legal typology to categorize these harms. It argues that there are four primary types of algorithmic harms: eroding privacy, undermining autonomy, diminishing equality, and impairing safety. Additionally, it identifies two aggravating factors—accountability paucity and algorithmic opacity—that cause these seemingly minor harms to escalate into significant problems by obstructing harm detection and correction. This Article then conducts case studies of relevant legal frameworks in the United States, the European Union, and Japan to assess the effectiveness of existing responses to algorithmic harms. The case studies reveal that these regulatory examples are insufficient; they either overlook certain types of harms or fail to consider their cumulative effects, thereby allowing problematic AI practices to circumvent legal obligations.
Drawing on these findings, this Article proposes three legal interventions to address algorithmic harms, each aims to mitigate primary harms by targeting aggravating factors. Refined harm-centric algorithmic impact assessments, which impose an obligation on AI developers to address the compounded harms, serve as a starting point for enhancing algorithmic accountability. While these assessments often have a collective focus and overlook individual differences, individual rights in terms of algorithmic systems provide enhanced control over AI applications that could lead to aggregated primary harms. The success of these tools relies on a set of disclosure duties designed to reduce algorithmic opacity in favor of increased harm awareness, especially in situations where AI use is associated with intangible yet far-reaching harms. Taken altogether, this harm-centric procedural approach advances the conversation about the legal definition of algorithmic harms, the boundaries of AI law, and viable approaches to effective algorithmic governance
Disability, Race, and Health Beyond the Carceral State
Get PDFA review of Embodied Injustice: Race, Disability, and Health. By Mary Crossley
Still Searching for Zora Neale Hurston
Get PDFA review of Their Eyes Were Watching God. By Zora Neale Hurston