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Digital Tax Arithmetic.
No full textMore than 20 countries recently adopted digital services taxes, with many others threatening to do so. The Organisation for Economic Co-operation and Development (OECD) is attempting to convince countries to withdraw their digital taxes in return for an international agreement to implement its Pillar One proposal that would let countries tax prorated shares of the profits of foreign firms with local sales. This paper identifies incentives that countries have to impose inefficiently high rates of digital taxes and calls attention to shortcomings of the OECD’s formulary apportionment alternative. Diverging interests and the inflexible nature of the multilateral bargaining process make prospects for global agreement highly uncertain
A New Framework for Taxing Cryptocurrencies
No full textThis Article explores the tax law challenges associated with the taxation of cryptocurrencies and offers proposals to address such challenges. The Article addresses the proper tax treatment of different cryptocurrency transactions and activities. It examines various aspects associated with the taxation of cryptocurrency through its life cycle, starting from earning cryptocurrency, through its disposal or exchange. The Article also examines the tax treatment of two special crypto events, hard forks and airdrops. Specifically, this Article describes a proposal to tax cryptocurrencies based on their unique features. It argues that various ways of earning or receiving crypto tokens (for example, mining in proof-of-work (PoW) protocols like Bitcoin and staking in proof-of-stake (PoS) protocols like Ether) generate taxable income. The Article argues that the U.S. framework for taxing cryptocurrency is unadministrable and ignores the defining feature that distinguishes crypto from other assets: its volatility. Because of its volatility, crypto should not be taxed until tokens are exchanged for real-world items like fiat currency or goods and services. Finally, the Article argues that when crypto tokens are exchanged for fiat currencies or goods and services, they should be treated as foreign currency if held for less than one year
How the Blockchain Undermined Digital Ownership
No full textThe shift from a market built around the sale of tangible goods to one premised on the licensing of digital content and services has done significant and lasting damage to the notion of individual ownership. The emergence of blockchain technology, while certainly not necessary to reverse these trends, promised an opportunity to attract investment and demonstrate consumer demand for marketplaces that recognize meaningful digital ownership. Simultaneously, it offered an avenue for alleviating worries about hypothetical widespread reproduction and unchecked distribution of copyrighted works. Instead, many of the most visible blockchain projects in recent years—the proliferation of new cryptocurrencies and the NFT craze, chief among them—have ranged from frivolous opportunities for speculation to outright fraud. Rather than sowing technological seeds that might have yielded a workable proof-of-concept for digital property interests in consumer goods, exploitative blockchain schemes have salted the earth, threatening to discredit the broader, and fundamentally more important, project of constructing a legal framework for digital ownership
Informationalism Beyond Managerialism
No full textIt is now commonplace to observe that digital platforms are both affecting and reshaping markets. The focus of this Article is not the anticompetitive effects of digital platforms upon the markets they enter. It instead focuses on digital platforms themselves as market mechanisms. Information—especially datafied information about people and their behavior—and information technologies have transformed how many markets function in the digital economy. Markets have become market machines: highly engineered and computationally intensive market-like mechanisms that make up a key layer of technological infrastructure within digital platforms
The Weakness of Neighborhood Revitalization Planning in the Low-Income Housing Tax Credit Program: Warnings from Connecticut
No full textThe Low-Income Housing Tax Credit (LIHTC) is the nation\u27s largest program to produce and preserve subsidized housing. To ensure that LIHTC avoids harmfully concentrating poverty, entrenching segregation, or inefficiently deploying resources, federal law requires that states prioritize allocating credits to projects located in high-poverty locations that contribute to a concerted community revitalization plan (CCRP). In high-poverty neighborhoods, tax credit developments are meant to facilitate broader neighborhood revitalization, not only to benefit the residents of the housing itself. This paper provides new, empirical support for long-standing concerns that the CCRP process is ineffectively enforced.
Looking at each application for competitive tax credits to be used in high poverty neighborhoods in a representative state (Connecticut) over a ten-year period, we find little revitalization planning that meets either the terms or the intent of the statute. Almost no applications referenced any discrete revitalization plan, and many applications lacked even the basic elements of revitalization planning. Yet, every single application that sought credit for contributing to a CCRP received it. Moreover, we observe little difference in the revitalization planning described in applications located in high-poverty neighborhoods and applying for the CCRP priority point, on the one hand, and those located in low-poverty neighborhoods not eligible for that priority, on the other. We therefore see little indication that the CCRP process either crossed an absolute threshold of meaningful revitalization planning or that it materially increased revitalization planning relative to what would otherwise have taken place.
We conclude by offering suggestions for how the CCRP process might be reformed to better leverage federal and state investments for broader neighborhood gain, and to vindicate this important Congressional mandate
Constitutional Losses and (Some) Statutory Wins for Criminal Defendants: Select Criminal Law and Procedure Cases from the Supreme Court\u27s 2022-2023 Term.
No full textThe Supreme Court’s 2022–23 Term included a number of important statutory interpretation rulings, as well as significant cases concerning the scope of the Confrontation Clause; the Venue, Vicinage, and Double Jeopardy Clauses; the federal courts’ ability to entertain claims of legal innocence; and the contours of the adequate and independent state ground doctrine. It also was the first term for Justice Ketanji Brown Jackson—the first former public defender and first Black woman to join the centuries-old institution. Although Justice Jackson joined a Court ruptured along ideological lines and confronting serious challenges to its legitimacy and ethical standards, she quickly proved comfort- able with both building consensus and going it alone
States’ Duty Under the Federal Elections Clause And A Federal Right to Education
No full textFifty years ago, in San Antonio Independent School District v. Rodriguez, the Supreme Court failed to address one of the preeminent civil rights issues of our generation—substandard and inequitable public education—by holding that the federal Constitution does not protect a general right to education. The Court didn’t completely close the door on a narrower argument that the Constitution guarantees “an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.” Both litigants and scholars have been trying ever since to push that door open, pressing various legal theories propounding that education be recognized as a protected “prerequisite” to established rights of voting, political participation, or citizenship. No such theory has gained more than momentary traction in the courts, unsurprisingly, given the oft-proclaimed axiom that our Constitution secures only negative rights.This Essay introduces a novel framework for considering this important constitutional question. The Elections Clause of Article I, which has largely been ignored, presents a promising foundational duty from which a “prerequisite” state obligation to provide public education might spring. The Elections Clause commands state governments to design and hold elections to select members of Congress. In this sense, states are already constitutionally obligated to establish the very edifice of representative democracy. Especially since the Court reminded in Rodriguez that the Constitution does not directly protect a right to vote, I believe this state electoral duty—which clearly does contemplate voting—offers a firmer foundation to which a state education duty might anchor than those other sources identified in Rodriguez or since. Moreover, the Elections Clause and related electoral duties debunk naysaying that the Constitution recognizes no affirmative rights or duties requiring state officials to act positively. And finally, focusing on state duties rather than affirmative rights invites creative thinking about judicial enforcement approaches, including some that might better fit federal courts’ remedial comfort zone. Other theoretical, doctrinal, and pragmatic challenges remain to be addressed, but my hope is that highlighting states’ affirmative electoral duty offers a fertile fresh start in this critically important constitutional discourse
Trust, Trustworthiness, and Misinformation Shared by the Government
Get PDFWhere does trusted information come from? In a world of misinformation, where everyone is skeptical of everything, at least we can rely on expert, authoritative government agencies like the Environmental Protection Agency, the Centers for Disease Control, the Patent Office, and the Food and Drug Administration, right? Right
Teaching Slavery in Commercial Law
Get PDFPublic status shapes private ordering. Personhood status, conferred or acknowledged by the state, determines whether one is a party to or the object of a contract. For much of our nation’s history, the law deemed all persons of African descent to have a limited status, if given personhood at all. The property and partial personhood status of African-Americans, combined with standards developed to facilitate the growth of the international commodities market for products including cotton, contributed to the current beliefs of business investors and even how communities of color are still governed and supported. The impact of that shift in status persists today. The commodities markets and the nations that rose and prospered would not be possible without the slave trade, and that trade would not be possible without the legal, business, and social norms in place to facilitate private ordering and growth while reinforcing the subjugation of African-Americans. Yet, many business and commercial law professors devote class time to teaching foundational and historical material, without any consideration of the impact of slavery. To avoid slavery in business and commercial law courses is to ignore an institution that plays a pivotal role in much of what we do today. Slavery is not a frolic, it is foundational.
Many American universities played a role in the slave trade—either by receiving funds from the enterprise or receiving the enslaved as donations and using their labor or disposing of them for the financial advancement of the institution. In my Core Commercial Concepts course, a Uniform Commercial Code (UCC) survey class covering Articles 2, 3, 4, and 9, I devote time and space to discussions of race and the law by making the connection between the history of commercial concepts, slavery, and the role of the cotton industry in the shaping of international commercial law norms. In my simulation, described in this Essay, I teach the story of Washington and Lee University’s sale of individuals for the purpose of ensuring the institution’s financial survival, then extrapolate from the facts to review the high points of commercial law. I incorporate materials on the legacy of slavery at my own institution to provide students with a scenario based on the acquisition of real property and construction of buildings they engage with on campus. In this Essay I explain the methods I use to explore these concepts. Working in a framework that focuses on classification and status, my students consider issues of federalism and the impact of statutory definitions on private ordering, while discussing how these definitions shape the relationship of African-Americans to commerce