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A Response to Professor Choi’s Beyond Purposivism in Tax Law
Get PDFThis response to Professor Choi’s excellent article questions whether the proposals made by the article can solve the tax shelter problem, and argues that a better response is to bolster purposivism with a statutory general anti-abuse rule (GAAR)
Policing Queer Sexuality
Get PDFA Review of Vice Patrol: Cops, Courts, and the Struggle over Urban Gay Life Before Stonewall. By Anna Lvovsky
Beyond “Big Government”: Toward New Legal Histories of the New Deal Order’s End
Get PDFA Review of Public Citizens: The Attack on Big Government and the Remaking of American Liberalism. By Paul Sabin
An Order, Most Fixed
Get PDFA Review of Rules: A Short History of What We Live By. By Lorraine Daston
The Not-So-Standard Model: Reconsidering Agency-Head Review of Administrative Adjudication Decisions
No full textThe Supreme Court has invalidated multiple legislative design choices for independent agency structures in recent years, citing Article II and the need for political accountability through presidential control of agencies. In United States v. Arthrex, Inc., the Court turned to administrative adjudication, finding an Appointments Clause violation in the assignment of certain final patent adjudication decisions to appellate panels of unconfirmed administrative patent judges. As a remedy, a different majority declared unenforceable a statutory provision that had insulated Patent and Trademark Office (PTO) administrative adjudication decisions from political review for almost a century. The Court thereby enabled the politically appointed PTO Director to review and change individual decisions, reasoning that this would provide political accountability while conforming PTO practice to “the standard model” for agency adjudication.
Descriptively, agency-head review of adjudication decisions is far from standard, either in current agency structures or in historical patent practice. Nor is it necessarily a panacea for achieving effective oversight. For many kinds of adjudication decisions political control can present dubious benefits and distinct risks. It may bring little accountability for highly technical, low salience decisions, while allowing political officials to reward friends and punish enemies, especially when agencies adjudicate high-value claims. It may compromise other long-valued adjudication features, including independence of adjudicators from enforcement officials. It may be a haphazard mechanism for achieving uniform decisions in high-volume adjudication regimes. Finally, it may tempt agencies to make policy through adjudication rather than through procedures that enable broader input and provide greater accountability such as rulemaking. In short, no single model is likely to be appropriate in all adjudication settings. The history of legislative design of administrative adjudication structures shows that the political branches are able to learn from experience, assess tradeoffs, and revise institutions to address public needs. When the Court redesigns agency structures, it intrudes on responsibilities traditionally and more appropriately exercised by the political branches
Editing, Vehicles in the Park, and the Virtue of Clarity
No full textWhat is the optimal amount of advocacy?
My law students and I face that question all the time. We face it when we’re drafting motions. We face it when we’re proposing changes to contracts. We even face it when putting together key emails, text messages, and social-media posts.
In all these situations and many more, we don’t want to oversell our arguments and ideas — but we don’t want to undersell them either. Instead, we hope to hit that perfect sweet spot known as “persuasion.”
We don’t always succeed, but one thing that has significantly increased our effectiveness is the amount of time we spend on an important skill: editing
The UTPR and the Credits
No full textCritics of the UTPR (formerly known as the undertaxed payments rule) of the G-20/0ECD/ inclusive framework base erosion and profit shifting project\u27s pillar 2 have focused on the potential impact of the top- up tax on U.S. environmental credits enacted in the Inflation Reduction Act(IRA, P.L.11 7-169) and on credits to encourage domestic chip manufacturing in the Creating Helpful Incentives to Produce Semiconductors and Science Act (the CHIPS Act, P .L. 117-167). They argue that Congress\u27s ability to effectively implement its chosen policy goals is undermined because the UTPR - when applied to other parts of U.S. multinational enterprises - will eliminate the tax effect of the credits. This, the critics argue, is an unjustified interference with Congress\u27s ability to tax U.S. corporations on U.S.-source income in any way it chooses
Restoring Indian Reservation Status: An Empirical Analysis
No full textIn McGirt v. Oklahoma, the Supreme Court held that the eastern half of Oklahoma was Indian country. This bombshell decision was contrary to settled expectations and government practices spanning 111 years. It also was representative of an increasing trend of federal courts recognizing Indian sovereignty over large and economically significant areas of the country, even where Indians have not asserted these claims in many years and where Indians form a small minority of the inhabitants.
Although McGirt and similar cases fundamentally turn on questions of statutory and treaty interpretation, they are often couched in consequence-based arguments about the good or bad economic effects of altering existing jurisdictional relationships. One side raises a “parade of horribles.” The other contends that “the sky is not falling.” Yet, to date, there is hardly any empirical literature to ground these debates. Litigants have instead been forced to rely upon impressionistic reasoning and economic intuitions.
We evaluate these competing empirical claims by exploiting natural experiments: judicial rulings altering the status quo of Indian reservation status. Applying well-established econometric techniques, we first examine the Tenth Circuit’s Murphy v. Royal decision in 2017 and the Supreme Court’s McGirt v. Oklahoma decision in 2020, which both held that the eastern half of Oklahoma was in fact Indian country. To do so, we leverage monthly employment data at the county level, annual output data at the county level, and daily financial data for public companies incorporated in Oklahoma. Contrary to the “falling sky” hypothesis that recognition of Indian jurisdiction would negatively impact the local economy, we observe no statistically significant effect of the Tenth Circuit or Supreme Court opinions on economic output in the affected counties.
We supplement these findings by analyzing five further case studies. These include three Supreme Court decisions: Nebraska v. Parker (concerning the Village of Pender, Nebraska); City of Sherrill v. Oneida Indian Nation (City of Sherrill, New York); and South Dakota v. Yankton Sioux Tribe (Mix County, South Dakota). We also analyze settlements between tribes and state governments in Mt. Pleasant, Michigan, in 2010 and Tacoma, Washington, in 1989. On balance, we report no statistically significant evidence that recognition of tribal jurisdiction reduces economic performance in the affected counties, and we provide several hypotheses to contextualize these findings. These results have important consequences for future litigation related to tribal sovereignty
Missed Connections in the U.N. Agenda: Applying the Women, Peace and Security Framework to the Feminization of Poverty
Get PDFWomen, Peace and Security, a multifaceted agenda intended to address the particular ways in which conflict affects women, has been on the United Nations agenda since the landmark Security Council Resolution 1325 passed in 2000. The unequal burden of poverty on women, a phenomenon that has been coined “the feminization of poverty,” has been on the United Nations agenda for even longer, since the 1995 Beijing Conference on Women. Yet, despite the fact that poverty and inequality both cause and result in conflict in a violent cycle, the problem of the feminization of poverty has not been integrated into the United Nation’s Women, Peace and Security agenda at large. This Note argues that the eradication of the gendered impact of poverty must be a central goal of the Women, Peace and Security agenda: first, to ensure the full enjoyment of women’s human rights, and second, because an agenda for peace can only be achieved by increasing gender equality and women’s political participation. This point is demonstrated through an analysis of the current system of international peacebuilding, which relies heavily on international financial institutions and perpetuates a neoliberal economy, to the detriment of both peace and women’s rights. This Note concludes that applying the framework of the four pillars of Women, Peace and Security (participation, protection, prevention, and post-conflict relief and recovery) can disrupt the cycles that perpetuate conflict and deny women equality, opportunity, and adequate living conditions
Title IX and Menstruation or Related Conditions
Get PDFTitle IX of the Education Amendments Act of 1972 (“Title IX”) prohibits sex discrimination in educational programs or activities receiving federal financial assistance. Neither the statute nor its implementing regulations explicitly define “sex” to include discrimination on the basis of menstruation or related conditions such as perimenopause and menopause. This textual absence has caused confusion over whether Title IX must be interpreted to protect students and other community members from all types of sex-based discrimination. It also calls into question the law’s ability to break down systemic sex-based barriers related to menstruation in educational spaces. Absent an interpretation that there is explicit Title IX coverage, menstruation will continue to cause some students to miss instruction. Other students may be denied access to a menstrual product or a restroom as needed and face health consequences. They also may be teased and bullied after menstrual blood visibly leaks onto their clothes. Employees, who are also covered by Title IX, may be fired for damaging school property as a result of such leaks.1 People in perimenopause may be denied reasonable modifications like bathroom access, water, or temperature control. Collectively, this creates an educational system that prevents students, faculty, or employees from fully participating in educational institutions and causes harm