Monthly Archives: June 2010

Slicing the Global Tax Pie

M. F. de Wilde, Some Thoughts on a Fair Allocation of Corporate Tax in a Globalizing Economy, 38 Intertax 281 (2010) (abstract at Scholars Portal).

Tax scholarship produced abroad frequently offers a unique perspective on the same knotty domestic and foreign tax issues with which we wrestle here in the United States.  A case in point is the recent article from Maarten de Wilde of Utrecht University, the Netherlands, which combines original thinking with elements of Dutch tax law in proposing a solution to perhaps the most perplexing problem in taxation today; namely, how to allocate the right to tax income between and among competing, sovereign jurisdictions, each of which asserts legitimate residence–or source–based claims to tax the global income of multinational enterprises (MNEs).

The current formula for global tax allocation attempts to assign a source to business income that reflects the physical location in which the income was produced. As de Wilde observes, however, the formula was developed in the 1920s, when there were far fewer MNEs, Europe was decades away from being economically integrated, and technological advances had not produced “e-commerce” and the bewildering array of intangible assets and financial products that are an integral part of the global economy and that have become increasingly difficult to source.  Complicating the essential sourcing problem are state tax systems that are not only internally inconsistent in their treatment of income from domestic and foreign transactions, but also differ among one another in their choice of rates, taxable units, tax bases, treatment of deductions, definitions of particular entities, and a host of other matters.  As a result, much business income is either subjected to double taxation, or to the extent MNEs are able to successfully arbitrage the differences among tax systems, no income taxation at all. Continue reading "Slicing the Global Tax Pie"

Finding a Place for Data in the Patent Troll Debate

Patent lawyers, like many of our kind, are obsessed with classifications, determinations, and definitions: is a patent claim a true invention or is it part of the prior art? Is it an abstract idea or a specific method? Does it claim a means or a function? In fact, the very notion of intellectual “property” is premised on the idea that we can discern one category of things from another in order to establish metes and bounds and enforce exclusion.

No patent classification schema has been more controversial in recent years than that applied to patent litigation plaintiffs that do not make, use, sell or offer for sale a product or service. Are they trolls or investors? Are they rent-seekers or research incubators? Are they pests or pioneers? Such rhetoric has filled essays, academic articles, courtrooms and legislative halls without much actual evidence to support one characterization versus another. Continue reading "Finding a Place for Data in the Patent Troll Debate"

There There? Does State Constitutional Law Exist?

Robert F. Williams, The Law of American State Constitutions (Oxford University Press: 2009).

Robert Williams, who teaches at the Rutgers-Camden Law School, is a long-time and very distinguished laborer in the field of state constitutional law – really, both a pioneer and a leader.  His book looks, at first glance, to be a grand summing up, an attempt at magisterial synthesis.  But it is in fact much better than that.

The table of contents tells the story. Continue reading "There There? Does State Constitutional Law Exist?"

Enforcement and Institutions

Discrimination in employment on the basis of race, color, national origin, sex, and religion has been against the law since 1964, and while norms have certainly changed in that time, the number of allegations of discrimination in the workplace grows every year, suggesting that something is still not right. Figuring out what is a messy question, which is why studies of enforcement and interpretations of Title VII are so welcome to those of us interested in this area.

Margaret Lemos’s current article is no exception. Although the paper focuses mostly on an important gap in the administrative law literature—that is, even though there has been much written on why Congress delegates and how it chooses to delegate at all, very little has been written on how Congress chooses what institution to delegate power to and how to shape that delegation—it also reveals important data about enforcing Title VII, in large part because that statute provides her case study. Moreover, to the extent that so much of the employment discrimination literature focuses on issues concerning the substance of the law or lack thereof, a study of who is making that law fills an important gap in this literature as well. Continue reading "Enforcement and Institutions"

Women and BigLaw: a New Look at the Problem

In the 1970s, during the rise of what was then known as the women’s movement, one popular T-shirt proclaimed: “I haven’t come a long way, and I’m not a baby.” It was a clever riposte to a high-profile cigarette ad campaign of the era that linked smoking and feminism. That T-shirt slogan is one that female lawyers at large firms today might want to adopt as their own.1

In his new article, Eli Wald sheds light on why women in BigLaw have not yet come “a long way.”  He explains that large law firms have adopted a professional ideology of hypercompetitiveness, which has transformed the firms into sites where the opportunity to pursue a balanced life is, by definition, completely absent.  This is “bad news for women lawyers and for the prospect of greater gender equality in the legal profession.”2 (P. 2287).  In fact, it’s bad news for everyone:  according to Joyce Sterling and Nancy Reichman, in the same symposium, “the long hours are taking their toll on male associates as well,” which is confirmed also by Dau-Schmidt et al in the Michigan alumni study. Continue reading "Women and BigLaw: a New Look at the Problem"

An Intriguing Thought Experiment on Culpability

Larry Alexander and Kimberly Kessler Ferzan (with Stephen Morse), Crime and Culpability, Cambridge University Press (2009).

In their important book on criminal law theory, Crime and Culpability, authors Larry Alexander, Kim Ferzan, and Stephen Morse, vigorously and deftly defend the view that criminal liability should turn solely on moral culpability.  They argue that an actor’s moral culpability is based on her acts and the moral significance of her intent to commit certain acts with the knowledge that those acts unleash risks.  As the authors divorce “resulting harm” from the culpability equation, they provide a useful glimpse of a criminal law system focused squarely on the actor’s choice to engage in risky acts.  Their theory of culpability is not novel but their full sweep application of it here paints quite a picture—one with unusual results, as noted below. This book is both thought-provoking and thoughtfully written.  It is hard to put down, at least figuratively.  Like any worthwhile read, aspects of the authors’ arguments continue to haunt its reader long after the arguments seemed to have been put to rest.

Alexander, Ferzan and Morse begin their book with the odd concession that “criminal law’s purpose is the prevention of harm” and that the norms of conduct embodied in criminal law “exist for that purpose.” (P.17.)  This is odd only because as retributivists, they disavow the importance of harm in assessing criminal culpability.  Their “choice” theory of criminal law—a theory finding culpability in the choices we make that unjustly jeopardize the interests of others rather than in the results of those choices—leads to some curious results.  Perhaps most notably, they argue for the elimination of negligent crimes on the ground that those offenses do not demonstrate an insufficient concern to the protected interests of others.  They would also eliminate the line between offenses and defenses—that is the distinction between the prima facie elements of a charge and its exceptions or defeaters.  In addition, they seek to do away with incomplete attempts (and the attendant substantial step formulations), as well as complicity, contending that only the unjustifiable risks that the actor himself unleashes beyond his control count toward culpability.  As if all this weren’t sufficiently radical, the authors also propose designing a criminal code with no list of crimes or wrongs (e.g., rape, murder, robbery), but rather one where a finding of criminality rests on a generic finding of unjustifiable risk creation.  In essence, there is so much fodder for comment and discussion in Crime and Culpability that one hardly knows where to begin. Continue reading "An Intriguing Thought Experiment on Culpability"

Rethinking Legal Postivism

Frederick Schauer, Was Austin Right After All?  On the Role of Sanctions in a Theory of Law, 23 Ratio Juris, 1 (2010), available at SSRN, and Frederick Schauer, Positivism Before Hart, in M.D.A. Freeman, ed., John Austin and His Legacy, available at SSRN.

Survey courses in analytical legal philosophy commonly include brief excerpts from the jurisprudential writings of Jeremy Bentham and John Austin. After a cursory treatment of their work, with emphasis on the “command theory” of law, the focus shifts to H.L.A. Hart’s famous critique of Austin and then to Hart’s own influential version of legal positivism. The prevailing view has long been that Hart’s critique of Austin was decisive and that Hart’s own theory of law expresses legal positivism’s “core commitments.” Both bits of the conventional wisdom come under scrutiny in a pair of provocative recent articles by Frederick Schauer.

In “Was Austin Right After All? On the Role of Sanctions in a Theory of Law,” Schauer explains why, contrary to the prevailing view, Austin’s account of law may have been more nearly accurate than Hart’s. He acknowledges that on many points, Hart identified important deficiencies of Austin’s account. Austin focused, for example, on duty-imposing rules, neglecting the critical and sometimes constitutive role of the power-conferring rules so pervasive in advanced legal systems. And his notion of the sovereign oversimplified legal systems in multiple ways by essentially treating all of law on the model of an absolute monarch’s imposition of rules on obedient subjects. Continue reading "Rethinking Legal Postivism"

Testation, Empiricism and Gender Equality

Daphna Hacker, The Gendered Dimensions of Inheritance: Empirical Food for Legal Thought, 7 J. of Empirical Studies (forthcoming 2010), available at SSRN.

There is a distinct lack of empirical research in the area of inheritance law.  Domestically, inheritance law is the province of fifty different states.  Thus, conducting an empirical study of testamentary patterns is a painstaking process that requires fieldwork in multiple probate courts, often consisting of a tedious review of individual probate court case files or records.  And among the studies that have been done over the years, few have focused on the role of gender in our field.  That gap is the focus on Daphna Hacker’s new article, The Gendered Dimensions of Inheritance: Empirical Food for Legal Thought, in the Journal of Empirical Legal Studies, a peer-edited, peer-refereed, interdisciplinary journal.  Hacker is an Assistant Professor at the Buchman Faculty of Law, Tel Aviv University where she is also a faculty member in the NCJW Women and Gender Studies Program.

In her article, Hacker identifies four historical trends which have created the conditions under which women may exercise broader freedom to bequeath property at death.  These include laws which allowed women to own property in their own right, the abolition of rules that prevented women from inheriting property, the enactment of laws allowing women to be full participants in the labor force and the trend toward recognition of marital property rights in both spouses.  After identifying these trends, Hacker poses the following questions which empirical research could help us answer if it were more widely conducted: Do women take full advantage of this power to bequeath property?  Do they use this power to bequeath wealth as they wish?  Are there gendered dimensions to intestate succession?  And are there differences between the structure and content of men and women’s wills? Continue reading "Testation, Empiricism and Gender Equality"

Health Care Costs and Fiscal Infirmity

Atul Gawande, The Cost Conundrum: What a Texas Town Can Teach Us About Health Care, The New Yorker (June 1, 2009).

Anyone who wants to understand fiscal policy in the United States for the next fifty years will need to understand health care costs.  There are many important issues in tax policy – the income/consumption debate, whether and how to tax wealth (especially at death), how to deal with transfer-pricing problems, when to tax capital gains, how to handle tax protesters, and so on – but the single issue that is going to drive tax policy is health care inflation.

Scary proclamations that the U.S. faces a “long-term fiscal crisis” are actually statements that health care costs could ruin the economy.  If health care costs stop increasing – either by government action or because of some “natural” maturation process in the medical-industrial complex – then there is no long-term fiscal crisis.  The so-called Social Security crisis is an over-hyped non-event, as I have argued elsewhere, and as even the most serious budget hawks will admit.  Nothing else in the budget (certainly not “waste, fraud, and abuse”) even comes close to justifying alarm about the long-term need to raise taxes.  It is all about health care. Continue reading "Health Care Costs and Fiscal Infirmity"