Monthly Archives: November 2011

Judicial Specialization and the Functional Case for Non-Article III Courts

Lawrence Baum, Specializing the Courts (Univ. of Chicago Press 2011).

As is abundantly clear from the Supreme Court’s June 2011 decision in Stern v. Marshall, the debate over the propriety of non-Article III federal adjudication tends to reduce to the classical divide between separation-of-powers formalists and functionalists. Thus, Chief Justice Roberts’s opinion for the 5-4 majority, in the course of holding that non-Article III bankruptcy courts could not constitutionally exercise jurisdiction over certain kinds of state-law counterclaims, repeatedly trumpeted the need zealously to protect Article III prerogatives from even the smallest encroachment. In contrast, Justice Breyer’s dissent harped on the real-world efficiency that such adjudication promoted, criticizing the majority for failing to appreciate how much its decision would likely slow down (and further complicate) bankruptcy litigation by requiring the intervention of district courts before final judgment in a far greater number of cases. As Breyer explained, “a constitutionally required game of jurisdictional ping-pong between courts would lead to inefficiency, increased cost, delay, and needless additional suffering among those faced with bankruptcy.”

For those, like Justice Breyer, who are taken by the functional case for non-Article III adjudication, Lawrence Baum’s new book, Specializing the Courts, couldn’t come at a better time. Indeed, although Baum’s monograph consciously sidesteps the debate over the constitutionality of non-Article III adjudication, there are obvious—if not compelling—parallels between his comprehensive treatment of the causes and consequences (and pros and cons) of judicial specialization and the functional case for at least most non-Article III federal courts. Continue reading "Judicial Specialization and the Functional Case for Non-Article III Courts"

Taking Sovereignty Seriously

David Hasen, Tax Neutrality and Tax Amenities, __ Fla. Tax Rev. __ (forthcoming 2011), available at SSRN.

As with many areas of law, a canon of sorts has grown up around the field of international taxation.  Pursuant to this canon, income disappearing “through the cracks” of the international taxing regime, and the resulting loss of tax revenue, has been singled out as one of the single largest problem plaguing the international fiscal order.  This has led to concerted efforts to recapture this disappearing tax base through multiple types of enforcement or punishment, most famously through a blacklist campaign led by the OECD against so-called uncooperative tax havens.

What may surprise some, however, is that this canon appears to rest primarily on a single, somewhat dated, premise arising from the public finance literature: that of tax “neutrality” – or the idea that the tax law should not change where and how capital invests around the world as compared to what would occur absent taxes.  Neutrality, it was argued, was the sine qua non of the international tax regime in that it would prevent “distortions” to international capital flows, thus maximizing worldwide efficiency; increased worldwide efficiency would mean increased worldwide growth, making all countries better off – the supposed common goal of all.  Given that neutrality would benefit the entire worldwide tax regime, the argument went, it was appropriate or even necessary to punish countries which did not adopt “neutral” policies in their tax laws as well. Even critics of this approach seemed to base their analysis in neutrality terms, effectively ceding the battleground before a shot was fired. Continue reading "Taking Sovereignty Seriously"