Does Punishment Work (at Least in International Tax)?

Niels Johannesen and Gabriel Zucman, The End of Bank Secrecy? An Evaluation of the G20 Tax Haven Crackdown, 2014 Am. Econ. J. Econ. Policy 65.

The OECD is currently undertaking a major study of virtually every significant issue confronting the international tax regime through its “base erosion and profit shifting” (BEPS) project. Among the proposals for reform include the familiar call for increased penalties on non-cooperative states. In fact, punishment has served as a core feature of virtually every modern attempt to combat tax competition.

But does punishment really work in this context? Niels Johannesen and Gabriel Zucman address precisely this question in their paper The End of Bank Secrecy? An Evaluation of the G20 Tax Haven Crackdown. The best way to describe the project is to quote the abstract:

During the financial crisis, G20 countries compelled tax havens to sign bilateral treaties providing for exchange of bank information. Policymakers have celebrated this global initiative as the end of bank secrecy. Exploiting a unique panel dataset, our study is the first attempt to assess how the treaties affected bank deposits in tax havens. Rather than repatriating funds, our results suggest that tax evaders shifted deposits to havens not covered by a treaty with their home country. The crackdown thus caused a relocation of deposits at the benefit of the least compliant havens.

This paper provides an extremely important and timely contribution to the international tax literature. Anecdotal evidence about the effectiveness of punishment has been mixed to date, and there has been little empirical data directly on the question. Further, the question taps into a larger debate over the underlying, root causes of tax competition more generally. By providing empirical data directly on this question, Johannesen and Zucman move the debate forward in an extremely valuable way. Continue reading "Does Punishment Work (at Least in International Tax)?"

 
 

Beyond Diversity Rhetoric: Understanding the Link between Professional Responsibility and Reasonable Accommodations for Lawyers with Disabilities

Over the last three decades organized bar groups and law firms have embraced the value of diversity, taking steps to promote diversity among ranks of lawyers. These diversity initiatives fall short when they do not include the interests of lawyers in different groups. One group that is often ignored is comprised of lawyers with disabilities. That is one of the reasons that I especially liked this article.

Professor Long’s article is a welcome addition to the scholarship on diversity in the legal profession. It addresses important issues that deserve attention, providing insightful observations on the connection between professional responsibility and the inclusion and treatment of lawyers with disabilities. Specifically, the article examines the inextricable link between lawyers’ professional responsibility under the ethics rules, professionalism, and the Americans with Disabilities Act (ADA) provisions that require reasonable accommodations for persons with disabilities. Continue reading "Beyond Diversity Rhetoric: Understanding the Link between Professional Responsibility and Reasonable Accommodations for Lawyers with Disabilities"

 
 

The Open Access Advantage in Legal Education’s Age of Assessment

James M. Donovan, Carol A. Watson & Caroline Osborne, The Open Access Advantage for American Law Reviews (October 7, 2014), available at SSRN.

Open access (OA) scholarship is available online, without fees, and free of restrictive copyright and licensing provisions. As institutions of higher education implement a more metrics-driven paradigm, law schools are increasingly attentive to the quantification of both individual faculty and aggregate law school impact. Citation counts are one means of quantifying these impacts. Donovan, Watson, and Osborne build on their 2011 article, Citation Advantage of Open Access Legal Scholarship, which demonstrated that open access resources have a great impact on legal scholarship, (103 Law Lib. J. 553, 557). In this article, they work to develop a systematic and scientific explanation for why open access scholarship has a citation advantage in the legal education context.

The authors’ research shows that articles published simultaneously as print and open access law review articles provide at least a 50% citation advantage over their print-only law review counterparts. More specifically, they find that the aggregate cumulative OA advantage for new and retrospective works combined is about 53%; the OA advantage of newer works published during the years 2007-2012 is about 60%. Their research also indicates that OA articles are more heavily cited in the years immediately following an article’s publication and that OA articles tend to “command greater attention over the lifespan of the work” (Donovan et al, at 8). Continue reading "The Open Access Advantage in Legal Education’s Age of Assessment"

 
 

Racialized Violence and American Liberalism

Daniel Kato, Constitutionalizing Anarchy: Liberalism, Lynching, and the Law, 10 J. of Hate Stud. 143 (2012).

For nearly a century in the American South, lynching as a practice of racialized violence persisted openly and with minimal federal intervention. In his article, “Constitutionalizing Anarchy,” the center-piece of a book forthcoming from Oxford University Press titled Liberalizing Lynching: Building a New Racialized State, 1883-1966, Daniel Kato not only provides a compelling and novel explanation for the reasons why. He also forcefully argues that one cannot understand either the character of American liberalism or how the American state developed over the course of the twentieth century without placing the question of racial violence at the center.

In studies on American political development, accounts of lynching and its persistence abound. Some scholars argue that the American state in the post-Civil War period was “weak,” institutionally limited in its capacity to address rampant violence against African Americans—especially given the divided and federalist nature of the constitutional system. By contrast, others contend that rather than being incapable of stopping lynching, the federal government actually implicitly sanctioned the activity. Continue reading "Racialized Violence and American Liberalism"

 
 

The Federalism Argument for Judicial Diversity

For the past several years, commentators have discussed the importance of diversity in the federal judiciary. Yet in at least some respects the federal judiciary is becoming less diverse, not more. Consider the current Supreme Court. Five of the justices—Ruth Bader Ginsburg, Antonin Scalia, Samuel Alito, Sonia Sotomayor, and Elena Kagan—are from the Northeast, and two others—Chief Justice John Roberts and Justice Clarence Thomas—went to law school on the East Coast and have spent the vast majority of their professional lives in Washington, D.C. Only Justices Stephen Breyer and Anthony Kennedy, who both grew up in California, are from the West Coast. We have no sitting justice from the Northwest or the Midwest, nor do we have a justice who assumed the bench directly from a position in the South.

To the ongoing conversation about diversity in the federal judiciary, Sharon Rush’s recent article offers an intriguing argument in favor of geographic diversity. She explains that the principles of federalism embedded in Article III favor consideration of geographic diversity in federal judicial appointments. Even the simple structure of the judiciary that we take for granted reflects the concern that different geographical regions are adequately represented: the circuits are designed by geography, each state has at least one federal district court judge, and no district combines multiple states. This organization, Rush persuasively explains, “is partly due to efficiency concerns, but is also a result of federalism and state participation in protecting individual liberties.” While Article III does not require this structure, its concern for federalism explains why the judiciary has been designed as it has. Continue reading "The Federalism Argument for Judicial Diversity"

 
 

Cyber-Sexual Harassment

Danielle Citron, Hate Crimes in Cyberspace, Harvard University Press (2014).

Danielle Citron’s Hate Crimes in Cyberspace is a breakthrough book. It has been compared, and with good reason, to Catherine MacKinnon’s Sexual Harassment of Working Women. The book makes three major contributions. All are central to furthering the equality of women and men both in cyberspace and elsewhere.

First, Citron convincingly catalogues the range of harms, and their profundity, done to many women and some men by the sexual threats, the defamation, the revenge pornography, the stalking, and the sexual harassment and abuse, all of which is facilitated by the internet. Women who blog on virtually any topic, certainly on feminist or sexuality sites but also on technical software or engineering sites, or who simply have a presence in cyberspace in any of the various forms the medium permits, can be and frequently are targeted for extreme forms of vitriolic and sexualized assaults, not just from a few isolated and psychopathological bad apples, but by large groups of linked commentators, who quite intentionally and explicitly spread the cyber-hate through organized, networked technologies, and to virtually all corners of the cyberspace. The assaults threaten the victim and sometimes her family members—particularly younger sisters—with sexual injury, rape, dismemberment and murder, and are sometimes accompanied by personal information such as place of employment and addresses. The defamation comes in the form of claims that the victim is incompetent at her work or in her career, hyper-sexualized (e.g., that she enjoys sex with strangers, with home addresses included), or dishonest or fraudulent, which are spread widely, and are intended to professionally injure and humiliate the victim in her workplace or school, and prevent her advancement or hiring in her field. “Revenge pornography” refers to the publication for public consumption and without the victim’s permission of nude photos or videos which may have been made with the victim’s knowledge, but are then widely distributed for the express purpose of exacting revenge, usually because of a break-up. Stalking is in the form of constant harassment and surveillance on line, with the threat of it spilling over into offline stalking as well. The harassment and abuse take all of these forms as well as others: chat rooms created and dedicated to the destruction of the victim’s reputation, or to the expression of hate and sexual insults, or to the mounting of threats intended to intimidate or terrorize. Continue reading "Cyber-Sexual Harassment"

 
 

Measuring Serendipity

Bhaven N. Sampat, Serendipity (Mar. 8, 2014), available at SSRN.

“Serendipity, the notion that research in one area often leads to advances in another, has been a central idea in the economics of innovation and science and technology policy.” Yet, Bhaven Sampat argues, “serendipity is a hypothesis, not a fact,” and it therefore needs to be tested. So Sampat set out to do just that, designing an impressive study to measure serendipity in pharmaceutical research. In this context, Sampat defines serendipity in terms of cross-disease spillover: results are serendipitous when research that was originally funded for one purpose (to target a certain disease) turns out to be useful for another purpose (in the treatment of different diseases).

Sampat tests the serendipity hypothesis by comparing the disease foci of NIH grants to the research output from those grants. Because most of the NIH Institutes and Centers are explicitly disease-oriented, Sampat is able to compare the disease foci of the granting Institutes to the foci of publications that result from the grants, to citations to these publications in patents, and then to marketed drugs associated with those patents. Finally, Sampat focuses on the subset of drugs held by NIH researchers themselves (the Bayh Dole drugs). Publications, patents, and drugs with different disease foci than the granting Institute are deemed evidence in support of the serendipity hypothesis. Continue reading "Measuring Serendipity"

 
 

Rhetoric and Clarity

James G. Dwyer, Misused Concepts and Misguided Questions: Fundamental Confusions in Family Law Debates, 4 Int’l J. Jur. Fam. 239 (2013).

In “Misused Concepts and Misguided Questions,” Jim Dwyer is working within an important tradition of thinkers (going back at least to George Orwell’s famous essay, “Politics and the English Language”) who correct the sloppy arguments, rhetoric, and terminology the rest of us make, to bring us collectively towards clearer moral and policy arguments. There is also more local and recent precedent for this effort. In his critique of the misleading rhetoric of “government intervention,” Dwyer rightly notes (p. 239 n. 2) that he is making essentially the same point that Frances Olsen made in her famous 1985 article “The Myth of State Intervention in the Family,” 18 U. Mich. J. L. Reform 835 (1985). Family law scholarship can certainly use more of the sort of critique that Olsen and Dwyer bring.

Dwyer’s point (like Olsen’s earlier) is that it is wrong and misleading to view the policy choices relating to the regulation of families as being between “government intervention” and “non-intervention.” Government intervention in the family is inevitable, if only to set the baseline rights and duties of the individuals. Especially when one considers the prerogatives spouses have to one another, and the powers parents have over their children, it is hard to discern what “non-intervention” could mean. No government presence at all would entail a sort of Hobbesian world, the war of all against all. Instead, all interactions are regulated and constrained by basic rules creating criminal and civil sanctions for assault, fraud, robbery, rape, murder, etc. No one is suggesting that these “interventions” be removed. Continue reading "Rhetoric and Clarity"

 
 

Entering the Spaces of Power

What has happened to the vocabulary of justification associated with the welfare state – that language of need, equality and social justice so crucial for anchoring and grounding public action? Have the terms of justification become appropriated and re-aligned, articulated to neoliberal concepts of entrepreneurship, discipline and waste, or simply abandoned? And does anything remain of a more progressive set of significations (or chains of meaning)?

In a thoughtful, wide-ranging and nuanced article, the eminent public governance scholar, Janet Newman, explores some ways of diagnosing the present, situating contemporary strategies of governing, in nations such as Britain, in relation to concerns about the securing and unsettling of political consent. What causes people to sign up to or acquiesce in current governance arrangements, and what challenges to this often reluctant acquiescence are posed, as nations struggle to define, mobilise and respond to political moments of ‘crisis’? Continue reading "Entering the Spaces of Power"

 
 

Ending the “Correctional Free Lunch”

W. David Ball, Defunding State Prisons, 50 Crim. L. Bull. 1060 (2014).

Professor W. David Ball has outlined a fundamental pathology of American criminal justice policy and offered a solution. The problem is that states generally pay the full cost of imprisonment, but they do not decide who goes to prison. Instead, most police and prosecutors act at county levels or below. In an era where mandatory sentencing is common, every cop, prosecutor and judge can write any number of six- or seven-figure checks that someone else must pay. Thus, when a prosecutor makes a charging decision or makes a sentencing argument to a judge, no one involved need consider whether the cost of imprisonment represents a net benefit to society. A long sentence takes nothing from the budget of the judge and prosecutor, just as a short sentence or non-prison sentence does not preserve resources usable for something else. The state offers prosecutors and judges a choice: on the one hand, unlimited free prison; in the alternative, nothing.

The absence of a close connection between decisionmaker and funder might have been tolerable when prisons housed a far smaller share of the population, and the number of offenses in state penal codes were much fewer. But the United States has had record rates of imprisonment in recent years, for an array of crimes, a large number of which are not common law felonies or other traditional moral wrongs. Continue reading "Ending the “Correctional Free Lunch”"

 
 

Putting the Summary Judgment Cart before the Bias Horse in Employment Discrimination Cases

In The Trouble with Torgerson: The Latest Effort to Summarily Adjudicate Employment Discrimination Cases, Professor Theresa M. Beiner challenges a relatively recent Eighth Circuit case, Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011), that argues that employment discrimination cases are no poorer candidates for summary judgment adjudication than other cases. Professor Beiner argues that employment discrimination cases tend to be ill-suited for summary judgment because they usually involve intent issues, which are ill-suited for summary adjudication. In addition, they involve claims of discrimination, which can be more difficult to resolve on summary judgment than at trial because of issues related to implicit bias.

The article is a part of the Nevada Law Journal’s Symposium on the 50th Anniversary of Title VII. The entire symposium is worth a read, with contributions addressing subjects including harassment, retaliation, and employer policies on using employee criminal records. Indeed, some of the other articles also qualify as TWELL (things we love lots). Continue reading "Putting the Summary Judgment Cart before the Bias Horse in Employment Discrimination Cases"