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Carried Interest: Recent Tax Holding Envisions Need For New Legislation
Full text linkIn the financial world, carried interest represents the share of the profits of a private equity fund allocated to its manager which is disproportionate when compared to the manager’s relative capital contribution. On May 3, 2023 the Tax Court issued its memorandum opinion in ES NPA Holding, LLC v. Commissioner. The decision quickly became popularized as providing reassurance to sponsors of private equity funds that they will rarely, if ever, realize income as a result of the issuance of a profits/carried interest (the so-called front-end issue for carried interest). The so-called back-end issue is how the income arising from a carried interest is taxed when the profits are realized. This article describes carried interest’s so-called front-end history from the 1970s, noting the Treasury’s, scholars’, and courts’ recognition of an unresolved reciprocal relationship between the front-end and back-end issues, that being that the receipt of a profits interest is a type of deferred compensation. Most of the proposed carried interest legislation and scholarship recognized this. The article then asks whether the tax court’s recent decision has settled doctrine with respect to the front-end taxation of carried interest. It concludes that cryptic messages in the Tax Court’s opinion indicates that it did not and that the opinion hiddenly asks for Congress to resolve the reciprocity
Should Hate Speech be Criminalized? Lessons from the Canadian experience in R v. Zundel and R v. Keegstra
Full text linkThere is a global trend toward increased use of criminal law to combat hate speech. In assessing this trend, one should be mindful of the experience of countries that have long had criminal laws targeting harmful expression. Canada is one such country. Using the leading Canadian cases of R v. Zundel and R v. Keegstra, this article argues that the Canadian experience suggests the criminal law is a flawed mechanism for countering harmful expression. This is so for at least three reasons. First, hate-speech prosecutions may undermine the group dignity and sense of inclusion of minority groups. Second, criminal laws against hate speech do not serve the primary objectives of criminal justice. Third, hate-speech trials may impede the search for truth, a fundamental purpose of the criminal process
How to Teach A Course On Land Use and Anti-Jewish Discrimination
Full text linkIn 2022, I was asked to teach a one-week mini-course within a broader course on “Structural Barriers and the Pursuit of Equity,” a course focusing on various forms of structural discrimination The course is typically taught by over a dozen professors from various parts of Touro University, each of whom teaches for a week on a different topic. I chose to teach on issues related to land use law (because my scholarship focuses on that area) and in particular how land use law has been used by and against traditionally observant Jews (because that is the religious tradition I am most familiar with). The purpose of this paper is primarily to explain the substance of the course: that is, what I chose to teach the students about land use law and Jews. I divided the course into three areas: intentional discrimination against observant Jews, constitutional issues other than intentional discrimination, and issues arising under federal statutes
Legal Strategies to Foster Global Accountability in Prosecuting Human Trafficking
No full textAssistant Professor Tiffany Williams Brewer from Howard University presented her work, Legal Strategies to Foster Global Accountability in Prosecuting Human Trafficking. The paper examines human trafficking as modern slavery, highlighting its disproportionate impact on Black women and girls. Brewer advocates for stronger global legal mechanisms, urging the ICC to take a more active role in prosecution. She addresses inconsistencies in anti-trafficking laws, challenges in international cooperation, and the need for a victim-centered approach to ensure justice and restitution.https://ecollections.law.fiu.edu/faculty-workshops/1077/thumbnail.jp
Climate Finance Needs More Market Discipline
No full textThe market for climate and sustainability-driven products and services is potentially very large and thus attractive to many investors and entrepreneurs. However, its current reliance on public subsidies and capital flows is a significant weakness that often goes unacknowledged
Absent Words, Absent Consent: Gisèle Pélicot and the Limits of French Rape Law
No full textFrance\u27s force-based definition of rape, which centers on violence, coercion, threat, or surprise, fails to adequately protect victims who are unconscious, incapacitated, or otherwise unable to resist. This deficiency was highlighted by the Mazan case, where structural gaps in French law made prosecuting mass sexual assaults involving an unconscious victim unusually complex. Under this framework, the legal requirements to establish rape distort the understanding of consent and perpetuate longstanding rape myths, including the presumption that silence implies agreement. Although convictions were ultimately secured in the Mazan case, they occurred despite the structure of the law. Without reform, France\u27s current rape statute will continue to impose undue burdens of production on victims. Comparative models and the Istanbul Convention reflect a growing shift toward consent-based definitions that prioritize voluntary agreement over physical resistance and have proven to result in higher prosecution rates for rape cases. Replacing France\u27s force-centric model with a consent-based approach would modernize its legal framework, close evidentiary gaps, and protect victims whose ability to communicate non-consent is impaired
Electing the Supreme Court
No full textThere is a curious irony in how we select United States Supreme Court justices. According to basic constitutional theory, as well as the arguments made by many leading Framers at the time of the Founding, one of the Court’s primary roles is to serve as a check on the executive and legislative branches when they exceed the constitutional limits imposed by the American people. Yet, we ask those very branches to jointly select the justices responsible for enforcing these limits, leaving the American people with only an indirect (if any) role in the process. Not surprisingly, the justices nominated by the President (a) are often the President’s close associates, personal lawyers, or life-long friends, (b) have extensive experience in the executive branch, (c) have significant connections within the federal government, or some mix of the above. Some of the most influential justices in modern American history—luminaries like Justice Robert Jackson, Justice Byron White, Chief Justice Rehnquist, Chief Justice Roberts, and Justice Scalia—ascended to the Supreme Court after notable careers in the executive branch. While there have certainly been instances in American history of justices standing up to the Presidents who appointed them (and of rejecting the partisan ideology of the nominating President’s political party), this has been the rare exception rather than the rule. Most often, the President selects justices who will support his agenda and shape America’s constitutional vision to align with the President’s, and the justices follow suit. This Article examines whether the current nomination and confirmation process is truly the best method for selecting judges who are meant to act as a check on the other branches of government, and whether it is consistent with American constitutional history and theory. I conclude that it is not and argue that Supreme Court justices, like other agents of the American people, should be directly elected by the people.
Most people simply accept that the current method of selecting Supreme Court justices—nomination by the President and confirmation by the Senate—is the best approach to choosing judges. In many ways, this is understandable; after all, when it comes to federal courts, we inherited this selection method from England and have adhered to it for centuries. The Federalist Papers devote only a single sentence to the topic of initial judicial selection, essentially dismissing it as a non-issue. Moreover, lawyers, judges, and legal academics are almost universally opposed to judicial elections. Given this entrenched perspective, both in the eyes of the public and the legal profession, it is unsurprising that judicial elections are rarely, if ever, proposed in discussions about Supreme Court reform.
This Article breaks away from that conventional understanding. I argue that the current selection method is fundamentally flawed and that well-regulated judicial elections to a single, non-renewable term offer a superior approach for selecting judges to serve on a constitutional, policy-making court like the Supreme Court. Moreover, in an era defined by the growing reach of executive authority, the rise of the imperial presidency, and overarching federal power, the Court’s role as a vital check on presidential and congressional action is more essential now than ever before. In this Article, I propose a constitutional amendment to implement the direct election of Supreme Court justices and demonstrate that this proposal is not as radical as it may initially seem and that it aligns with constitutional theory, American history, and our evolving understanding of the judicial role
Individual Academic Freedom and The Current Forces of Economics and Technology
Full text linkThere are always a number of cultural constraints on higher education institutions. Such cultural constraints always matter. But sometimes, as in our day, such constraints are especially severe. These constraints are broadly economic; more specifically market-based; and technological in nature. They operate on public and private universities and on law schools in particular. Our concern herein is for such constraints in the many cases in which a faculty member’s speech on some matter of public interest arguably impairs a legitimate interest of the employer-university or law school. The weight of the educational institution’s interests in such academic speech cases is, for several reasons, increasing. Any balancing of the relevant individual professorial interests and the educational institutional interests in such cases should take these increasing institutional constraints into proper account