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Delay, Politics, and Expertise in OIRA Tax Review
No full textThe opening months of the second Trump administration have featured a wide range of changes to federal policy accomplished through presidential executive orders. Among those changes, a lesser-known shift is the reinstatement of centralized review of tax regulations by the Office of Information of Regulatory Affairs (OIRA).
For many years, most tax regulations were exempt from OIRA review. That changed in the first Trump administration when the Treasury Department (Treasury) and OIRA signed a memorandum of agreement bringing more tax regulations within OIRA’s oversight sphere. In the Biden administration, Treasury and OIRA reversed course, this time clearly and unequivocally exempting all tax regulations without exception. Now the script has flipped again, as a new Trump executive order has reinstated OIRA review of tax regulations.
OIRA review of tax regulations is controversial, with critics complaining of long delays in the publication of important regulatory guidance and increased political meddling in decisions that ought to be made by tax experts. This article documents the first and only effort to study OIRA review of tax regulations comprehensively and empirically by analyzing the preambles of every notice of proposed rulemaking and Treasury Decision proposing or adopting temporary and final tax regulations published from 2016 through June 2023—434 documents in all, across three presidential administrations. From the data we conclude that complaints that OIRA review leads to lengthy delays and systematic politicization of tax policy are generally overblown. We additionally offer preliminary findings regarding OIRA’s contributions to transparency, and potentially to regulation quality. These findings shed light on the debate about OIRA review of tax regulations and potentially foreshadow implications of extending OIRA review to independent regulatory agencies as well
Key Tam: Giving Teeth to Federal Data Security Enforcement
Full text linkData breaches wreak havoc on data-handling entities, weigh heavily on the minds and hearts of breach victims, and elude the efforts of regulators and scholars alike. Since 2005, declared the “Year of the Data Breach,” every year has seen an increase in the number and impact of breaches. Data breaches cost United States companies billions of dollars, undermine consumer confidence, exacerbate geopolitical tensions, increase anxiety, and even result in bodily harm and death. Nevertheless, a suitable federal framework has yet to be enacted to address the perennial problem. Though the data breach epidemic may seem like a recent phenomenon—a biproduct of the current data-dependent internet society—data privacy and security concerns have existed as early as the first United States Census. Through a process of innovation and-response, the regulatory framework has developed into a haphazard patchwork of industry-specific standards that baffle both entities and consumers. Meanwhile, attempts to recover damages through civil actions are rarely successful in the face of procedural barriers, and the majority of federal data breach enforcement comes under a century-old law. This Note proposes that qui tam—an enforcement mechanism that allows private individuals called “relators” to sue on behalf of the Government to vindicate public rights—would serve to address many of the issues that plague data breach enforcement. This Note argues that qui tam mechanisms should be included in federal data security legislation to properly address the underenforcement issues and barriers to successful litigation that allow the age of the data breach to rage on. It further analyzes the current use of qui tam mechanisms in the False Claims Act as recently applied to government data contractors. Finally, it proposes two possible applications of qui tam: first, applying qui tam to a data security statute under a theory of the relator as an agent of the Government; and second, applying qui tam under the theory of the relator as a partial assignee of the Government’s claim. These proposals allow for better oversight and enforcement of data security standards to put the age of the data breach in society’s rearview mirror
Protecting Minnesota\u27s Whistleblowers: Ending the Application of McDonnell Douglas to the Minnesota Whistleblower Act
Full text linkWhistleblowers are critical to society, speaking out to protect the public from corporate and government wrongdoing. Employers often retaliate against employees who speak out, attempting to deter employees from blowing the whistle. Whistleblower protection statutes seek to protect those who suffer from retaliation, providing a judicial remedy for whistleblowers. The Minnesota Whistleblower Act affords these protections in Minnesota and allows whistleblowers to bring claims against their employers for retaliation. In Minnesota, whistleblowers are held to a higher, more challenging standard than whistleblowers in other states. Minnesota state courts apply a federal standard at summary judgment, creating an undue barrier for plaintiffs bringing retaliation claims. This federal standard, the McDonnell Douglas burden-shifting framework, often prevents plaintiffs with legitimate retaliation claims from ever presenting their case to a jury. Minnesota must end the application of the McDonnell Douglas burden-shifting framework to Minnesota Whistleblower Act claims. The continued application of this federal standard obstructs the proper summary judgment standard and limits a whistleblower’s ability to reach a settlement or receive a jury award. Other scholars and jurists have repeatedly criticized McDonnell Douglas in other contexts. This Note specifically addresses the inappropriate application of the framework to Minnesota Whistleblower Act claims. Further, this Note analyzes how different states have dealt with McDonnell Douglas in the whistleblower context and discusses how the Minnesota Supreme Court has reviewed the issue. Ultimately, this Note concludes that to protect whistleblowers, Minnesota must end the application of McDonnell Douglas to Minnesota Whistleblower Act claims
An Economic, Psychological, and Linguistic Explanation of (Some Reasons) Why Women Don’t Get a Fair Shake
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Antitrust Reformers Should Consider the Consequences of Mandatory Treble Damages: What the Admonition Against Putting New Wine in Old Wineskins Can Teach Us About Antitrust Reform
Full text linkTwins at Bat(son), Strikes Are Out: Minnesota’s Opportunity to Restore Batson v. Kentucky by Eliminating Peremptory Strikes
Full text linkMath and Aftermath: Impacts of Unbundling a Large Journal Package on Researcher Perceptions and Behavior
Full text linkThis study seeks to understand the effects on researchers’ work at a large research university in the wake of the university library’s shift from a near-comprehensive journals package with a single, large publisher to a selective list of individual journal subscriptions. Analyzing historical journal usage, along with turnaway and interlibrary loan trends from the years following the changes, the authors made use of structured interviews with local researchers to bring context and meaning to the quantitative data. The interviews highlighted researchers’ strategies for gaining access to literature in their fields to which the library does not subscribe, and revealed assumptions about timeliness of access, as well as relationships between library subscriptions and local researchers’ publishing behavior
Public Perceptions of Neurotechnologies Used to Target Mood, Memory, and Motor Symptoms
No full textPublic attitudes toward four neurotechnologies for treating three types of brain disorders (mood, motor, and memory) vary on a range of metrics, such as perceived risk, invasiveness, and likelihood of use. In a survey of 1,052 US participants, deep brain stimulation (DBS) was seen as the most invasive and risky among the surveyed methods, involving the greatest perceived change to the person and the least likely to be used personally. Non-surgical options like transcranial magnetic stimulation (TMS) and pills were viewed as more acceptable. Devices targeting motor symptoms were rated as more beneficial and acceptable than those for mood or memory. These findings highlight barriers to adoption and the need to address public perceptions, ensure patients are informed, and promote ethical implementation of these technologies