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Does the U.S. Have to Be a Tax Haven?
No full textThe United States is the world’s preeminent tax haven. Tax havens are defined as allowing secrecy and having low or zero tax rates; for nonresident aliens, the United States offers both.
The secrecy results from the fact that, in many U.S. states, it is possible to form a corporate entity without having to disclose information about the identity of the owner. This situation is beginning to change because of the Corporate Transparency Act, but the law has been challenged as unconstitutional. Even this would only apply for U.S. government nontax purposes. A nonresident alien who uses a U.S. limited liability company to shield income from taxation in their home country would be able to rely on the secrecy provided by U.S. state law
Ideal Enforcement: How Do We Achieve Optimal Enforcement of Traffic Law as Ubiquitous Enforcement Becomes Technologically Conceivable?
Get PDFSafety. Mobility. Technology. Data. Equity. Autonomy. Community. Justice. Power. Trust. These themes have resonated over the last few years across a wide range of specific issues—some that are new and others that have only recently received the broader attention that they demand. A coming age of “perfect enforcement,” in which both public and private actors use increasingly powerful, pervasive, and affordable technologies to automatically identify and penalize every deviation from public or private rules, captures all these issues: They meet—in the language of physics, they interfere, whether constructively or destructively—to affect both perception and reality. The potential role of technology in enforcement is both important in its own right and useful for exploring the larger challenges and opportunities that these themes present. This article advances these discussions by focusing on the implications of this perfect enforcement for road safety, including opportunities for an alternative vision of “ideal enforcement.
A Series of Historical Accidents
Get PDFThe Patent Act of 1946 banned infringer profit awards in utility patent cases by restricting all compensatory awards, including reasonable royalties, to the value of actual damages suffered and by eliminating infringer profits from reasonable royalty estimations. In 1964, the Supreme Court confirmed in Aro Manufacturing v. Convertible Top Replacement Co. that the 1946 Act limits reasonable royalty awards to the amount of the patentee’s actual damages, which courts must assess without regard to the value gained by the infringer. Subsequent courts, however, have ignored the 1946 Act and its correct interpretation in Aro, opting instead to permit profit disgorgement through reasonable royalty calculations. These extralegal calculations have fueled proliferation of patent assertion entities and expansion of the larger patent monetization market by enabling patent asserters to seek compensation based on infringer gains rather than patentee losses. This Article defends the 1946 Act and its interpretation in Aro as both good law and good policy. In support, this Article reviews over two-hundred years of patent damages law to identify the “series of historical accidents” that led to profit disgorgement and reasonable royalties in equity, explain how the 1946 Act restricted reasonable royalty calculations to damages only, and expose the second wave of accidents that caused modern courts to stray from the 1946 Act. Today, courts should enforce the Act’s restrictions on reasonable royalty awards by requiring plaintiffs to demonstrate actual injury-in-fact, limiting reasonable royalties to estimations of such injuries only, and disregarding evidence of infringer profits and other measures of infringer success when setting reasonable royalties
Narrowing FOIA\u27s Exemption For Business Secrets
Get PDFThis essay examines the judicial aftermath of Food Marketing Institute v. Argus Leader Media, a controversial 2019 Supreme Court decision that broadened the Freedom of Information Act (FOIA) exemption for trade secrets and confidential commercial information (“Exemption 4”). This decision has made it easier for firms to hide damaging information from public view, frustrating the efforts of journalists and government watchdog groups that make FOIA requests to expose environmental harms, health risks, and failures of agency oversight. But two recent circuit court decisions highlight a promising path forward; they interpret Exemption 4 in ways that can mitigate Food Marketing’s negative impact and align more closely with FOIA’s disclosure-promoting goals
Developing a Professional Identity: Lessons For Women, BIPOC, and First-Generation Law Students From the Canaries in the Coalmines
Get PDFThis Article explores the concept of professional identity formation in the law, particularly as it pertains to women and lawyers of color. The topic of professional identity formation is an understudied area in legal education, despite the ABA’s new Standard 303(b)(3), which requires law schools to provide substantial opportunities for the development of professional identity. In the legal field, professional identity is often conflated with professionalism, which leads to confusion about how law schools should best prepare their students for their professional lives, and fails to fully equip students to join the profession.
Studies from other professions have shown that professional identity is the development of an identity whereby, the newcomer to the profession is adopted into and successfully incorporates the values of the profession, merging the new professional identity with their existing personal identity. Professional identities are most effectively fostered through joining communities of practice, where newcomers are mentored and welcomed into the professional culture.
The Author argues that because the legal profession in private firms is still primarily white and male dominated, women, lawyers of color, and first generation lawyers do not always have access to the kind of mentorship, supportive community, and positive narratives that are necessary to foster a strong professional identity. While efforts have been made to foster diversity and inclusion in law firms, these have still fallen short. Thus, even though women, students of color, and first generation students might have positive experiences in law schools, these experiences are not necessarily replicated in firms. The Article goes on to suggest that this failure to fully incorporate these groups into a supportive community of practice in law firms, and the subsequent failure to foster and promote strong professional identities, may be one reason why women and lawyers of color leave the profession at far higher rates than white men
\u3cem\u3eCrawford\u3c/em\u3e and the Common Law Criminal Trial
Get PDFThree weeks after the Supreme Court decided Crawford v. Washington, Justice Scalia delivered the keynote address at the annual meeting of the American Society of International Law. Justice Scalia expounded on his views of when United States courts should and should not rely on foreign law. He urged that courts interpreting a treaty should look to how foreign courts construe the same instrument, on the reasonable assumption that treaty partners would want to strive for a consistent interpretation. By contrast, he took a dim view of relying on modern foreign law to interpret the U.S. Constitution, as the Court has done a number of times when deciding whether a punishment was cruel or unusual under the Eighth Amendment. Justice Scalia did not believe we have nothing to learn from foreign legal systems. He noted that he himself had taught comparative law before taking the bench. But as he pointed out, the Framers wrote much of the Constitution the way they did precisely because they believed the American way of doing things was better. As the Justice put it: “If there was any thought absolutely foreign to the founders of our country, surely it was the notion that we Americans should be governed the way Europeans are. And nothing has changed. I dare say that few of us here would want our life or liberty subject to the disposition of French or Italian criminal justice—not because those systems are unjust, but because we think ours is better.” That philosophy frames my remarks today. To understand the Confrontation Clause, I contend, we should discern not just what the Framers were striving for, but also what they were reacting against. The Framers sought to preserve a distinctly English institution: the common law criminal trial. And they sought to protect that institution against the civil law traditions of Continental Europe. In Justice Scalia’s terms, the Framers may not have believed those continental systems were unjust, but they certainly thought ours was better
Closing the Billionaire Borrowing Loophole Would Strengthen the Progressivity of the U.S. Tax Code
Get PDFThe vast majority of Americans are concerned that some wealthy people don’t pay their “fair share” of federal taxes. They’re right to be bothered: Loopholes in the U.S. tax code allow some billionaires to pay taxes equal to only 1 percent of the increases in their wealth, which tax textbooks across the country consider “income.”
How is this possible? The low effective tax rate arises in part because U.S. billionaires with large stock portfolios and other appreciated assets can borrow money using their considerable financial assets as collateral and then pay little to no taxes on the cash they use to finance their lifestyles. Some of the wealthiest people in the United States take advantage of this loophole, including Larry Ellison and Elon Musk. Without borrowing, they would have to sell more of their appreciated assets, “realizing” these gains and thus triggering income taxes
Toward an Absolute Privilege from Defamation for Statements Made in Campus Sexual Misconduct Proceedings
Get PDFTitle IX prohibits recipients of federal funding from discriminating on the basis of sex in their education programs and activities. The regulations implementing Title IX impose strict requirements on the procedures that institutions must follow in investigating and adjudicating complaints of sexual harassment. But survivors using campus processes are facing potential liability for defamation at an increasing rate. The existence of this threat leads to further underreporting of an already-underreported crime, a detrimental impact on survivors’ education, and psychological stress created by the re-traumatization of a civil suit that carries potential monetary liability for their report. This Note argues that absolute privilege should be extended to statements made in campus sexual misconduct proceedings. It explains why currently available lesser protections are insufficient to protect the interests of reporting and participation in the campus sexual misconduct process. It then describes how absolute privilege for these statements is necessary to protect survivors and the integrity of the sexual misconduct process. Finally, it includes proposed statutory and common law language for extending this privilege to statements made in campus sexual misconduct proceedings
Evaluating the Elimination of Peremptory Challenges in Arizona
Get PDFThe Supreme Court confronted racial discrimination in jury selection in Batson v. Kentucky by prohibiting the use of race as a factor in exercising peremptory challenges. But Batson challenges rarely succeed in overcoming a challenged peremptory strike and have long been criticized as insufficient to eliminate racial discrimination in jury selection. Justice Marshall correctly predicted in his concurring opinion in Batson that racial discrimination in jury selection would continue as long as peremptory challenges were permissible.
Recognizing Batson’s shortfalls, states have experimented with reforms ranging from lowering the required showing for a successful Batson challenge to enumerating presumptively impermissible justifications for peremptories. But only one state— Arizona—has gone as far as Justice Marshall envisioned by eliminating peremptory challenges altogether.
Peremptory challenges—along with the many other defendant-protective mechanisms embedded in the American criminal legal system—have long been accepted as essential to achieving fair trials and properly restraining the state. Drawing on interviews with practicing public defenders in Arizona, this Note will examine the impact of Arizona’s reform on defendants and explore the competing values at play: antidiscrimination on the one hand, and vigorous protections for defendants on the other. These values, each generally viewed as beneficial to combatting racism in the criminal legal system, appear at first glance to cut in different directions on the issue of the complete elimination of peremptories in Arizona. However, Arizona’s reform was accompanied by other significant changes to voir dire designed to accomplish some of the most highly valued functions of peremptory challenges. Interviews and analysis of early case law from Arizona reveal that the elimination of peremptories is a workable reform that other states should consider as they aim to reduce discrimination in jury selection