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Chenery II Revisited
No full textEver since the Supreme Court’s 1947 decision in SEC v. Chenery Corporation, known as Chenery II, agencies have enjoyed wide latitude to develop policy through individual adjudications in addition to rulemaking. Chenery II has never been completely uncontroversial, and in recent years, calls to overturn or limit it have been expressed in increasingly fervent tones. Agency policymaking by adjudication has emerged as a new front in the struggle over the administrative state.
Against the backdrop of such calls, this Article revisits some of the fundamental questions concerning the Chenery II doctrine. I argue in favor of retaining Chenery II’s core procedural holding. Indeed, except where the organic statute requires rulemaking, courts should never set aside an agency order because that order announces a policy that the court concludes should have been announced through rulemaking. But even if courts lack power to hold that agencies have violated procedural law by failing to use rulemaking in announcing a particular policy, the policy itself remains subject to more substantive limitations: it must have been the product of “reasoned decision-making,” and it must comport with applicable binding law. I argue that courts can adapt these limitations, as applied to particular policies adopted via adjudication, to address the gravest concerns raised by Chenery II’s skeptics. Finally, I evaluate two “soft” constraints on agency policymaking by adjudication, designed to influence agencies’ procedural decisions without purporting to control them. I argue that these soft limits, though plausibly justifiable, may have real costs and reap uncertain benefits. It is at best unclear whether they should be adopted
Now You Have It, Now You Don’t: Taxing Crypto, Part 2
No full textIn “Coinbase: Are Cryptoassets Securities?” Tax Notes contributing editor Lee A. Sheppard highlights a recent district court decision indicating that some forms of cryptoassets are securities for securities law purposes and therefore fall under the jurisdiction of the SEC:
There are potential tax ramifications. Some, indeed many, cryptoassets could be securities under the securities law. That means that losses can’t be recognized on wash sales (section 1091). The IRS should issue a notice stating that many cryptoassets other than bitcoin are securities, so losses on wash sales can’t be recognized. A notice would not be a heavy lift. The taxpayers involved are sophisticated. It’s a matter of tax fairness when the same IRS — which isn’t empowered to make decisions about fairness — is beating less affluent taxpayers over the head about stupid little things. . .
Retail Investors and Corporate Governance: Evidence from Zero-Commission Trading
Get PDFWe examine the effects of the sudden abolition of trading commissions by major online brokerages in 2019, which lowered stock market entry costs for retail investors, on corporate governance. Firms already popular with retail investors experienced positive abnormal returns around the abolition of commissions. Firms with positive abnormal returns in response to commission-free trading subsequently saw a decrease in institutional ownership, a decrease in shareholder voting, and a deterioration in environmental, social, and corporate governance (ESG) metrics. Finally, these firms were more likely to adopt bylaw amendments to reduce the percentage of shares needed for a quorum at shareholder meetings. Our results provide new insights into the effects of entry costs on investors and the role of retail investors in corporate governance
Reviving Indian Country: Expanding Alaska Native Villages’ Tribal Land Bases Through Fee-to-Trust Acquisitions
Get PDFFor the last fifty years, the possibility of fee-to-trust acquisitions in Alaska has been precarious at best. This is largely due to the Alaska Native Claims Settlement Act of 1971 (ANCSA), which eschewed the traditional reservation system in favor of corporate land ownership and management. Despite its silence on trust acquisitions, ANCSA was and still is cited as the primary prohibition to trust acquisitions in Alaska. Essentially, ANCSA both reduced Indian Country in Alaska and prohibited any opportunities to create it, leaving Alaska Native Villages without the significant territorial jurisdiction afforded to Lower 48 tribes. However, recent policy changes from the Department of Interior reaffirmed the eligibility of trust acquisitions post-ANCSA and a proposed rule from the Bureau of Indian Affairs signals a favorable presumption of approval for Alaska Native fee-to-trust applications. This Note reviews the history and controversy of trust acquisitions in Alaska, and more importantly, it demonstrates the methods in which Alaska Native Villages may still acquire fee land for trust acquisitions after ANCSA
Voting While Trans: How Voter ID Laws Unconstitutionally Compel the Speech of Trans Voters
Get PDFThirty-five states currently request or require identification documents for in-person voting, and these requirements uniquely impact transgender voters. Of the more than 697,800 voting-eligible trans people living in states that conduct primarily in-person elections, almost half (43 percent) lack documents that correctly reflect their name or gender. When an ID does not align with a trans voter’s gender presentation, the voter may be disenfranchised—either because a poll worker denies them the right to cast a ballot or because the voter ID requirement chills their participation in the first place. Further, when a trans voter presents an ID that does not align with their gender presentation, they effectively out themselves. For both nonpassing and cispassing trans voters, presenting an ID that does not align with their gender identity compels them to express a message about their identity that they do not personally believe. In response to these problems for trans voters, this Note offers a novel legal avenue through which to challenge voter ID laws, arguing that voter-ID requirements as applied to trans voters constitute compelled speech in violation of the First Amendment
Locating Liability for Medical AI
No full textWhen medical AI systems fail, who should be responsible, and how? We argue that various features of medical AI complicate the application of existing tort doctrines and render them ineffective at creating incentives for the safe and effective use of medical AI. In addition to complexity and opacity, the problem of contextual bias, where medical AI systems vary substantially in performance from place to place, hampers traditional doctrines. We suggest instead the application of enterprise liability to hospitals—making them broadly liable for negligent injuries occurring within the hospital system—with an important caveat: hospitals must have access to the information needed for adaptation and monitoring. If that information is unavailable, we suggest that liability should shift from hospitals to the developers keeping information secret
Taxation and Corporate Governance
No full textLegal and economic scholars have examined the intersection between corporate governance and taxation; however, recent legal scholarship has generally focused on the interplay between director compensation, management measures in the face of the market for corporate control, and the double taxation of inter-corporate dividends. Other aspects of the relationship between corporate governance and taxation have received limited attention. This article aims to fill this gap in the literature. First, this paper discusses the corporate agency problem and the existing justifications for the corporate tax. Second, this paper argues that the corporate tax can be justified on the ground that it mitigates the corporate agency problem more effectively and with fewer adverse consequences than alternative taxation systems
No More Tax-Free Lunch for Billionaires: Closing the Borrowing Loophole
No full textIn this article, Fox and Liscow propose a tax on billionaires that would impose a tax on borrowing against assets and explain how it could be designed and how it relates to other wealth tax proposals, and they consider what the potential critiques of the tax might be
Limitation on Benefits or Principal Purpose Test? Part 2
No full textPart 1 of this column discussed the choice between the limitation on benefits and principal purpose test (PPT) and the history of the LOB in U.S. tax treaty policy.
How effective is the LOB article in U.S. tax treaties, now that it no longer includes the PPT from the original U.S. LOB
Research Access to Social Media Data: Lessons from Clinical Trial Data Sharing
No full textFor years, social media companies have sparred with lawmakers over how much independent access to platform data they should provide researchers. Sharing data with researchers allows the public to better understand the risks and harms associated with social media, including areas such as misinformation, child safety, and political polarization. Yet researcher access is controversial. Privacy advocates and companies raise the potential privacy threats of researchers using such data irresponsibly. In addition, social media companies raise concerns over trade secrecy: the data these companies hold and the algorithms powered by that data are secretive sources of competitive advantage. This Article shows that one way to navigate this difficult strait is by drawing on lessons from the successful governance program that has emerged to regulate the sharing of clinical trial data. Like social media data, clinical trial data implicates both individual privacy and trade secrecy concerns. Nonetheless, clinical trial data’s governance regime was gradually legislated, regulated, and brokered into existence, managing the interests of industry, academia, and other stakeholders. The result is a functionally successful (albeit imperfect) clinical trial data-sharing ecosystem. Part II sketches the status quo of researchers’ access to social media data and provides a novel taxonomy of the problems that arise under this regime. Part III reviews the legal structures governing sharing of clinical trial data and traces the history of scandals, investigations, industry protest, and legislative response that gave rise to the mix of mandated sharing and experimental programs we have today. Part IV applies lessons from clinical trial data sharing to social media data and charts a strategic course forward. Three primary lessons emerge: first, the benefits of research on otherwise secret data are cascading and unpredictable; second, law without institutions to implement the law is insufficient; and, third, data access regimes must be tailored to the different sorts of data they make available