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Taxing Novelty
Full text linkThe advent of any new and unfamiliar economic activity sparks a flood of questions across a variety of legal fields, including tax law. This Article diagnoses the legal uncertainties surrounding novel activities as challenges of legibility in statecraft. Legibility is the process by which the state simplifies complex and often unfamiliar systems into a format that can be governed. Across broad areas of the law, placing things and activities into different legal categories is a means for the state to achieve legibility.
This Article aims to incorporate the framework of legibility into existing scholarly discourse on legal categories. Through the case study of taxing cryptocurrency, this Article develops a descriptive account of how legal decision-makers render novel economic activities legible. This descriptive account uncovers ways in which achieving legibility can be challenging for these decision-makers and accompanying risks to legal systems, including the risks of legal arbitrage by powerful interest groups. The Article applies these insights to propose legal reforms specific to tax law. It advocates for tax law to move towards fewer tax categories, which can ease legibility challenges and reduce potential risks
Securitizing the University
No full textSince October 7, 2023, public and private actors have doubled down on efforts to securitize the American university. In large part, these initiatives aim to quash a vocal pro-Palestine movement that has become highly visible across U.S. campuses since October 7th. In targeting this group, these efforts have variously treated the university as an object of national security, namely, as a potential site of national security risk, while simultaneously encouraging or pressuring universities to participate in national security, namely, by actively and, in many cases, voluntarily furthering U.S. national security objectives. The university\u27s status as object of and participant in national security has a long history, dating back to World War II and continuing in relatively unbroken fashion to the present moment, at least until recently.
This Article examines the university\u27s historical relationship to the U.S. national security state--as both object of and participant in national security--and situates current efforts to securitize higher education against that backdrop. While this recent securitization drive has accelerated and expanded since President Donald Trump took office in January 2025, this Article focuses on the origins of those efforts during the last fifteen months of the Biden administration. In doing so, this Article demonstrates how this recent chapter in the university\u27s securitization comports with endemic trends in U.S. national security, which include the maintenance of U.S. global hegemony; the anti-Palestinian animus at the heart of U.S. counterterrorism laws; a tendency to create enemies ; and the important role of private parties in shaping U.S. national security law and policy. Together, this analysis demonstrates that, rather than being aberrational, this current moment in the university\u27s securitization is an unsurprising and predictable consequence of how U.S. national security has long operated
Transforming Tax Expenditures
Full text linkFor decades, reformers have advocated the repeal of tax expenditures--disguised government spending through special preferences in the Internal Revenue Code. And yet, tax expenditures persist, impairing federal tax receipts by more than $1.8 trillion in 2024. This Article introduces a novel mechanism for tax expenditure reform. To the extent that direct statutory repeal proves impossible or impractical, lawmakers can achieve an equivalent result through a strategy of legislative anti-repeal. By radically expanding a tax expenditure\u27s legal scope, then adjusting progressive income tax rates to account for revenue loss and distributional considerations, lawmakers can effectively eliminate tax expenditures from the tax base and integrate them into the rate structure--a process this Article defines as base-rate transformation.
Base-rate transformations reframe conventional understandings of repeal and restrictive reform, as well as traditional reform narratives oriented around a mantra of broad base, low rates. Under certain conditions, statutory expansion operates as de facto repeal--or as restrictive reform. The crucial insight is that, for tax expenditures, the stakes of legal change lie largely in how lawmakers address any adjustments to statutory rates. From a normative perspective, base-rate transformations have implications for customary tax norms such as equity, efficiency, and complexity, as well as the political economy of tax expenditure reform. More generally, base-rate transformations challenge standard framings of tax expenditures and press for a more holistic approach to legislative changes to these provisions
What Copyright Can\u27t Do
Full text linkCopyright has become a powerful regulatory regime for modern American life. Copyrighted works, including text, images, video, sounds, music, and software, coupled with routine, frictionless copying, form a large part of the information, cultural and social context, and infrastructure of our increasingly digital society. Copyright law\u27s powerful remedies are now positioned to intervene in a wide range of everyday activities. As a result, scholars, policymakers, and advocates have increasingly called for modifying and applying U.S. copyright law to solve a wide range of public policy problems, from vindicating disability rights to protecting privacy to promoting competition among wireless carriers.
But there are some things that copyright can\u27t do. This Article identifies practical limits in the structure of contemporary copyright law and doctrine that constrain copyright\u27s capabilities for solving policy problems beyond copyright\u27s usual ambit. From these limits, this Article generates a novel taxonomy of regulatory tools missing from copyright law\u27s toolkit for addressing the harms and benefits of creative works and uses. These interventions--including regulating harmful creation and compelling beneficial creation, subsidizing creation and supporting creator welfare, preventing harmful uses of works by rightsholders and licensees, compelling licensed uses, and facilitating and liberating beneficial uses--are functions that depend on interventions from outside copyright law.
This Article illustrates the important policy consequences of copyright\u27s missing capabilities via case studies where scholars, policymakers, and advocates have deployed copyright doctrines in nontraditional contexts. These examples include remediating works into accessible formats for disabled consumers, stopping the creation of child sexual abuse material, regulating the nonconsensual distribution of intimate imagery, governing the development of generative artificial intelligence, allowing consumers to switch cell phone networks, and promoting good-faith security research. These examples show that copyright law\u27s underappreciated structural limits often impede efforts to solve public policy problems with novel copyright interventions
Contesting Address : Conflicts Over the Words We Use to Address and Refer to Each Other
Full text linkProfessor Richard Brooks\u27s generative insights provide us with valuable tools for recognizing, and trying to make sense of, address\u27s role in human interactions. That address --the words we use to address and refer to each other--has the potential both to offer value and to inflict harm to these interactions sometimes triggers conflict over appropriate forms of address. In this Commentary to Professor Brooks\u27s Frankel Lecture, I examine some of these conflicts.
As we\u27ll see, some address conflicts involve debates over whether and when address actually makes meaning or whether it’s instead relatively trivial--while others involve contestants who agree that address makes meaning in important ways but disagree over what meaning should be made. Examples include not only gender-specific and racially subordinating forms of address but also the (for a time) contested choice of simply President for addressing the nation’s chief executive and commander in chief.
Address conflicts are sometimes resolved (if they are resolved) through social practice and sometimes through law. Legal efforts to resolve address conflicts, more specifically, sometimes involve addressees\u27 legal claim to control how they are addressed, and sometimes also involve addressers\u27 legal claim to control how they address others. In settings where the listener (the addressee) has less power than the speaker (the addresser), we can sometimes understand address as the speaker\u27s command about how the target should behave: to borrow legal scholar Kent Greenawalt\u27s vocabulary, speech sometimes does something, not just says something. In those settings, equality law recognizes that speech--including address--sometimes rises to the level of unlawful discriminatory conduct. Courts\u27 resolutions of address conflicts thus often turn on whether and when they understand the contested form of address to do something, and not just say something