9571 research outputs found
Sort by
Taxing Nudges
Get PDFGovernments are increasingly turning to behavioral economics to inform policy design in areas like health care, the environment, and financial decision-making. Research shows that small behavioral interventions, referred to as “nudges,” often produce significant responses at a low cost. The theory behind nudges is that, rather than mandating certain behaviors or providing costly economic subsidies, modest initiatives may “nudge” individuals to choose desirable outcomes by appealing to their behavioral preferences. For example, automatically enrolling workers into savings plans as a default, rather than requiring them to actively sign up, has dramatically increased enrollment in such plans. Similarly, allowing individuals to earn “wellness points” from attendance at a gym, redeemable at various retail establishments, may improve exercise habits.
A successful nudge should make a desired choice as simple and painless as possible. Yet one source of friction may counteract an otherwise well-designed nudge: taxation. Under current tax laws, certain incentives designed to nudge behavior are treated as taxable income. At best, people are ignorant of taxes on nudges, an outcome that is not good for the tax system. At worst, taxes on nudges may actively deter people from participating in programs with worthy policy goals. To date, policymakers have generally failed to account for this potential obstacle in designing nudges.
This Article sheds light on the tax treatment of nudges and the policy implications of taxing them. It describes the emergence of a disjointed tax regime that exempts private party nudges, but taxes identical incentives that come from the government. What is more, an incentive structured as a government grant may be taxable while an economically identical tax credit is not. The Article then proposes reforms that would unify the tax treatment of nudges and enhance their effectiveness. Specifically, lawmakers should reverse the default rule that all government transfers are taxable, and instead exclude government transfers from income unless otherwise provided by the Tax Code
Piercing the (Sovereign) Veil
Get PDFSovereign nations own more than ten percent of the world\u27s largest firms and use these ownership stakes to pursue economic, social, and political objectives unrelated to profit maximization. Sovereign nations also have unique powers and attributes that ordinary owners lack. Sovereigns do not need an owner\u27s control rights to direct entity behavior; they have the power to regulate. Sovereigns do not need an owner\u27s economic rights to extract value; they have the power to tax. And sovereigns do not need to hide behind the principle of limited liability, which protects owners of limited liability entities; they have sovereign immunity in both domestic and foreign courts.
Despite these fundamental differences, neither courts nor legal scholars have seriously examined whether organizational law should distinguish sovereigns from other owners. This Article takes up that question, focusing on the law of veil piercing as applied to corporations and other limited liability entities owned by sovereign states. Its first contribution is to demonstrate that the principle of limited liability does different work for sovereign states than for ordinary shareholders. That principle\u27s primary function is to create a partition between the owner\u27s assets and those belonging to the entity. Because the partition yields important economic benefits, veil piercing is reserved for exceptional cases. But foreign states do not need organizational law to realize these benefits. The law of foreign sovereign immunity already protects the state\u27s assets in ways that mimic the protections of organizational law. By contrast, state owned entities rely on organizational law for asset protection. Put differently, in the sovereign context, organizational law mostly protects entities.
In the United States, the law of veil piercing in this context derives from the Supreme Court\u27s seminal Bancec case. The Article\u27s second contribution is to demonstrate that Bancec supports its clarified understanding of the relevance of organizational law. Indeed, Bancec was a reverse veil piercing case in which a creditor of a foreign state asserted a claim against a state owned firm. Bancec\u27s emphasis on the traditional asset protective function of organizational law must be understood in that context. Bancec does not stand for the proposition that foreign states should receive the same protections as ordinary shareholders. The Article closes by exploring implications of this analysis. Perhaps the most important (if counter intuitive) implication is that courts should be more receptive to traditional veil piercing claims, at least in a subset of cases
The Surprising Significance of De Minimis Tax Rules
Get PDFDe minimis tax rules — rules that eliminate tax burdens for low-income taxpayers or low-dollar transactions — abound in the tax law. Despite the prevalence of such rules, legal scholarship has treated them as — well — de minimis, or as mere rounding errors that do not merit sustained attention. This perspective is understandable. If de minimis rules address insignificant taxpayers or tax liabilities, aren’t the rules themselves likely to be insignificant? Recent tax law developments have revealed that this conception of de minimis tax rules is deeply misguided. Major allocations of tax law liability, as well as accompanying questions about the fairness, efficiency, and administrability of the tax system, turn on the existence and design of de minimis tax rules. In the wake of the recent Tax Cuts and Jobs Act, for example, astute industry players successfully lobbied the Treasury Department to create de minimis tax rules, thereby scoring significant monetary victories. De minimis tax rules like these not only serve as low-salience giveaways but are also poorly designed in a way that undermines the integrity of the tax system.
The lack of scholarly attention to de minimis tax rules has left this lobbying largely unchecked. There is no scholarly framework evaluating existing de minimis tax rules. There is no policy framework to help lawmakers decide why, when, or how such rules should be made. And there is no separation of powers framework analyzing when the Treasury Department has the authority to create de minimis tax rules without express Congressional authorization. This Article seeks to fill this gap by analyzing de minimis tax rules along all of these dimensions. It provides a framework for considering when de minimis tax rules are preferable to other policy options and offers important design considerations. Scholars can apply this analysis to the de minimis tax rules that already pervade the Internal Revenue Code and policymakers can use it to guide the many more they will consider in the future
Gender Violence, the Carceral State, and the Politics of Solidarity
Get PDFPart I of this Article examines gender violence committed by the State. It does so within the context of recent initiatives to address abusive police practices to demonstrate that issues of gender violence have been omitted from reform efforts. To that end, it provides a critical review of anti-carceral campaigns, including recent challenges to “stop-andfrisk” practices. Litigation addressing abusive police conduct has failed to identify stop-and-frisk as a particular form of gender violence. Similarly, community campaigns to oversee police body-worn camera policies have overlooked the differential ways in which survivors of gender violence are impacted by these police devices. This Part demonstrates how issues of gender violence committed by state actors have been omitted from and thus have weakened anti-carceral efforts generally.
Part II examines the persisting exclusion of gender violence from criminal justice reform initiatives in the context of the State’s response to gender violence committed by an intimate partner. Recently, anticarceral social movements have launched reform initiatives designed to end pre-trial detention and challenge the State’s predilection for detention and incarceration. Other similar reform efforts have sought compassionate release of incarcerated persons from jails and prisons related to COVID-19. Gender violence-related crimes, however, have been categorically omitted from these initiatives. Certainly, crimes of domestic violence raise a different set of concerns than offenses committed by strangers. The dangers victims face are indeed significant and must be addressed. But detention and incarceration practices have failed to provide substantive mitigation from acts of violence. This Part argues that the exclusion of gender violence offenses from decarceration efforts ignores the destructive effects of the criminal legal system while failing to produce the social remedies desired.
Part III analyzes the structural framework of gender violence as a way to advocate for the inclusion of intimate partner violence within the parameters of progressive criminal legal reform initiatives. Anti-carceral reform advocates have demonstrated that criminal behavior is the product of socio-political economic environmental contingencies beyond the remedial capacities of the criminal legal system. To that end, this Part examines the relationship between poverty and inequality, on one hand, and criminal behavior, on the other, as outcomes of a State-sanctioned political economy. These are structural conditions, of course, but conditions which are commonly experienced as personal harms in the form of trauma associated with domestic violence. This Part argues that the structuralist paradigm that situates criminal behavior within a political economic framework must also include acts of gender violence. To exclude intimate partner violence from decarceration efforts is ill-informed and ill-conceived.
Part IV proposes a “politics of solidarity.” That is, a broad lens through which to address gender-based violence as a social problem conditioned by the failures of a political economy that acts to perpetuate inequality and racism. It reviews the ways that anti-carceral strategies that center gender violence may help to strengthen the demands for a more progressive political economy, which then mitigates the determinants of transgressive behaviors. It points to new ways of addressing gender violence that can contribute to anti-carceral and political economic-related organizing. These endeavors often emerge from the lived experiences of those who have suffered gender violence and who have been harmed by the criminal legal system.
This Article concludes by asserting that in this present “moment of agitation” in the United States, it is both timely and urgent that scholars and advocates contemplate strategies that incorporate gender violence issues within a progressive anti-carceral agenda, and also acknowledge the connection between harmful acts within personal relationships and the failure of the State. Drawing connections between the determinants of crime as a general category and domestic violence as a specific subset invites a deeper understanding of transgressive behavior and the need for structural changes to prevent and humanely intervene in such acts
