Monthly Archives: May 2020

Uneasy Lies the Head that Owns Property

Paul Babie, Private Property Suffuses Life, 39 Sydney L. Rev. 135 (2017), available at SSRN.

There is ongoing disagreement among property scholars about the fundamental nature of property. Some view property ownership as a bundle of unfettered rights while others envision property as a complex web of rights and responsibilities. Paul Babie’s Private Property Suffuses Life, while technically a review of two recent books, manages to review those works while also offering additional insights into this larger skirmish.

At one level, “private property allows us to exert control over things and over people.” (P. 137.) Under this view, owners enjoy “liberal freedom of choice about the allocation, control and use of things.” (Id.) If an owner controls a particular asset, all others lack dominion over that same asset, which means that the owner “control[s] the lives of others.” (Id.) An owner can use their property as they choose, and no one else may interfere. This broad conception of property is widespread in modern life, having arisen in England, spread to the United States, and then infiltrated the rest of the world, most recently Asia. Continue reading "Uneasy Lies the Head that Owns Property"

Can the Wealth Tax Effectively Serve as a Backstop to Estate and Gift Taxes?

Jason Oh & Eric Zolt, Wealth Tax Design: Lessons from Estate Tax Avoidance, available at SSRN.

Wealth tax, sometimes confused with estate tax, does not currently exist in the United States but has been proposed by a few political candidates. A wealth tax, if implemented, would be imposed on the wealthiest households based on all property owned including personal property, business interests and capital property with unrealized appreciation. This tax would be an annual tax, unlike the estate tax which is imposed once on the transfer of a taxpayer’s assets at death. Proponents offer the wealth tax as another source of revenue and weapon against wealth inequality. Opponents claim a wealth tax would inhibit economic growth and job creation. Professors Jason Oh and Eric Zolt address the subject of imposing a wealth tax and explore the ways in which estate tax planning strategies may inform how to structure a wealth tax.

First, Professors Oh and Zolt explore the ways in which charitable contributions–and ultimately charitable deductions–reduce the estate tax liability and could erode a wealth tax base. They explain how, over a representative five-year period, charitable testamentary contribution amounts were ten times greater than the amount of lifetime giving by taxpayers with net estates valued between $50 to $100 million. For taxpayers with net estates valued over $100 million, they contributed 20 times more funds in testamentary charitable contributions than lifetime contributions. These scholars posit a wealth tax would likely cause donors to shift from testamentary charitable bequests to lifetime charitable contributions to avoid or significantly reduce wealth tax liability. Continue reading "Can the Wealth Tax Effectively Serve as a Backstop to Estate and Gift Taxes?"

The New World of International Tax

Ruth Mason, The Transformation of International Tax, 114 Am. J. Int’l L. __ (forthcoming, 2020), available at SSRN.

International tax law has been in the news a good deal lately, and one of the key developments widely discussed among international tax experts is the “OECD/G20 Inclusive Framework on BEPS,” which aims to take on base erosion and profit shifting (i.e., “BEPS”) behaviors of multinational enterprises (“MNEs”). Ruth Mason offers a broad new view of these developments in her article, The Transformation of International Tax.

Here’s the backstory: Before the 2008 financial crisis, world leaders largely tolerated cross-border corporate tax avoidance and minimization by MNEs. The 2008 crisis, together with data leaks, hacks, and resulting parliamentary and congressional hearings, brought heightened public attention to these tax avoidance strategies. This jolted world leaders out of their longstanding inaction. In 2013, leaders of the G20 countries tasked the OECD—an international organization that in recent years has played a key role in international tax policy—with coordinating multilateral efforts to ensure that MNEs paid their fair share of taxes. The OECD accordingly created its now-famous “BEPS Action Plan” in 2013 and delivered final action recommendations in October 2015. These recommendations consisted of 15 action items that countries should undertake to confront MNE base erosion and profit shifting behaviors. In 2016, recognizing that the success of the BEPS project required the engagement of developing countries, the OECD established the OECD/G20 Inclusive Framework. Through this new structure, the OECD and G20 invited developing countries to participate on an equal footing in the creation of standards to combat base erosion and profit-shifting behaviors and in the review and monitoring of OECD BEPS implementation. Continue reading "The New World of International Tax"

Long-Term Residence as Evidence of De Facto Membership

Shoba Sivaprasad Wadhia, Americans In Waiting: Finding Solutions for Long Term Residents, 46 Notre Dame J. Leg. 29 (2019).

In 2018 the Pew Research Center reported that approximately two-thirds of all unauthorized migrant adults in the United States have lived here for more than ten years. The average length of residence is fifteen years. The unauthorized migrant population has become a more settled population rather than a temporary population and mass deportation is politically impossible. In light of these realities it is critically important to seriously explore a pathway to lawful immigration status and/or citizenship for this population. Wadhia’s recent article in the Notre Dame Journal of Legislation argues that long-term residence should be a basis for access to regularizing immigration status in the United States. This argument is rooted in the historical use of long-term residence as the basis for a variety of forms of relief in immigration law.

Americans in Waiting: Finding Solutions for Long Term Residents offers a detailed overview of the role that long-term residence has played in the past, the role that it currently plays, and the role that it could play to address the immigration status of the almost 11 million unauthorized migrants in the United States. Long-term residence in the United States has been recognized as a mitigating factor in deportation cases since 1891 when Congress authorized the deportation of individuals who became a public charge within one year of arrival. The one-year statute of limitations was later extended to five years and this approach to deportation grounds was continued in 1917 when crime-based deportation grounds were adopted. Continue reading "Long-Term Residence as Evidence of De Facto Membership"

Promoting Diversity and Inclusion in the Legal Profession: The Significance of Giving Voice and Listening to Persons Who Experience Discrimination, Bias, and Harassment

Veronica Root Martinez, Combating Silence in the Profession, 105 Va. L. Rev. 805 (2019).

Let’s admit it, harassment and bullying are endemic in the practice of law. Horacio Benardes Neto, the President of the International Bar Association (IBA), made this observation in introducing an IBA report, called Us Too: Bullying and Sexual Harassment in the Legal Profession. Published last year, the report was based on findings from the largest-ever global survey of nearly 7,000 legal professionals in 135 countries. The survey revealed that one in three female respondents and one in fourteen male respondents had been sexually harassed at work. Additionally, one in two female respondents and one in three male respondents reported being bullied at work.

To help the legal professions address the serious problems of sexual harassment and bullying, the IBA report proposes ten recommendations. Recommendation One urges interested parties to “Raise Awareness,” while Recommendation Three calls on the legal profession to “Take Ownership” of the problem. These recommendations are one of the reasons that I commend Professor Veronica Root Martinez’s article, Combating Silence in the Profession. In her article, Professor Root Martinez both examines discrimination and exclusion in the legal profession and proposes practical steps for tackling the challenges of discrimination, exclusion, underrepresentation, and bias. Continue reading "Promoting Diversity and Inclusion in the Legal Profession: The Significance of Giving Voice and Listening to Persons Who Experience Discrimination, Bias, and Harassment"

The Injustices of Workers’ Compensation

On June 30, 1900, hotel laundress Nettie Blom operated a machine called a mangle, which used steam power to iron linens. In a tragic moment, the machine pulled in her hand and crushed it. How do we understand the historical and moral meanings of Blom’s injury? Do they lie in the excruciating pain she suffered during the accident or in its aftermath? In Blom’s loss of capacity to earn her livelihood? Or in her inability to continue to do the things she once enjoyed doing with her hand, from household crafts to engaging in a caress? Nate Holdren’s deeply thoughtful and important book, Injury Impoverished, which tells the story of the rise of a workers’ compensation regime in the early twentieth century, begins with Blom’s story and these questions.

In exploring their answers, Holdren investigates how individual workers, union leaders, insurance executives, major employers, and state administrators thought about the employment relationship. Ideas rather than narrative drive the book’s structure. Holdren draws explicitly on multiple political and legal theories to analyze evolving social and legal conceptions of disability, risk, and employment. In particular, Holdren uses the political theorist Nancy Fraser’s argument that justice requires both egalitarian redistribution and recognition, or treatment with dignity and respect. Holdren reminds the reader of “the old strike slogan . . . people need both bread and roses.” (P.12.) He argues persuasively that the workers’ compensation laws made partial strides toward distributive equity, while sacrificing recognition for workers’ full humanity. Continue reading "The Injustices of Workers’ Compensation"

Discretion, Division, and the Supreme Court’s Docket

Jonathan R. Nash & Michael G. Collins, The Certificate of Division and the Early Supreme Court, 94 S. Cal. L. Rev. __ (forthcoming 2021), available at SSRN.

The Constitution does not resolve foundational questions about the purpose and mechanics of the Supreme Court’s appellate jurisdiction. Should the nation’s highest court focus on resolving conflicts between lower courts, correcting errors, or opining on especially salient issues? And who should decide which appeals the Supreme Court will hear: the Justices by exercising discretion, Congress by enacting mandatory criteria, or lower courts by certifying issues for review? The Constitution’s flexibility regarding these questions creates leeway for experimentation.

A forthcoming article by Jonathan Nash and Michael Collins explores a fascinating jurisdictional experiment from the Court’s formative years. The experiment addressed tie votes arising from the quirky composition of circuit courts. Modern circuit courts sit in panels of three and primarily hear appeals. But for several decades circuit courts sat in panels of two and exercised both appellate and original jurisdiction. Panels typically consisted of one district judge and one Supreme Court Justice. The prospect of disagreement between the judge and Justice required a tiebreaking procedure. Continue reading "Discretion, Division, and the Supreme Court’s Docket"

Opting Out of Liability Rules

Kristelia García, Super-Statutory Contracting, __ Wash. L. Rev.  __ (forthcoming, 2020), available at SSRN.

Economic activities often conflict: a rancher’s stray cattle may reduce the value of a neighboring farmer’s crops, or a tech company’s file-sharing app may reduce the value of music labels’ records. When conflicts arise, society needs to decide which party’s interest to protect, and whether to do so with a property right or a liability rule. The law and economics literature teaches that lawmakers should devise entitlements while taking into account post-allocation transaction costs, with the goal of ensuring that resources end up in the hands of parties who put them to their most productive use.

Scholars have accordingly debated the relative performance of property rights and liability rules. In a seminal article, Rob Merges famously argued that one should not worry too much about transaction costs accompanying property rights. Should these prove prohibitive (as in the case of radio stations who need to license rights to many musical compositions that they wish to play over the air), and the property right choice inefficient, IP owners are likely to “contract into liability rules”;1 that is, they will privately arrange liability-rule-based licensing schemes (such as ASCAP) to lower licensees’ costs of access.

In a wonderful new article, Kristelia García reviews recent market dynamics that lend support to the mirror-image argument; namely, that one should not overstate the arguable inefficiencies of liability rules. Continue reading "Opting Out of Liability Rules"

Imaginary Laws

The subject of legal reasoning has stimulated an enormously wide variety of books and essays, articles and comments, offering the reader systematic exposition, technical illumination, practical guidance and critical commentary. The reader is clearly unsatisfied. The production of material continues without any sense that the latest contribution is about to close the debate and complete our understanding. Maks Del Mar’s recent book is not likely to provide the last word on legal reasoning. It does provide a novel perspective on where the elusiveness of legal reasoning might lie. It seems that we cannot capture the subject because however learned we might become in the techniques of reasoning with the law that we have, there is always the problem that imaginary laws might be invoked to disturb the precedents and doctrines, the templates and patterns, into which we fit existing legal materials.

That is a gross oversimplification and mischaracterization of Del Mar’s book, in at least three respects. First, for Del Mar, an imaginary realm of law does not exist outside of existing legal materials but rather legal materials possess an imaginative capacity. Secondly, legal reasoning does not get subverted by stretches of the imagination; instead, the imagination is a core faculty employed in legal reasoning. And thirdly, despite the limitation suggested by its subtitle, this is not simply a book about imagination, nor simply a book about legal reasoning. Continue reading "Imaginary Laws"

Intersectionality in the Opioid Crisis: Anti-Black Racism and White, Pregnant, Opioid Users

Political and social discourse is often characterized by an oppression Olympics. Which group, which characteristic, can assert that they are “more authentic, more oppressed, and thus more correct“? This dynamic appeared in full force during the Democratic primary. Was Pete Buttigieg more oppressed because of his homosexuality? Elizabeth Warren for being a woman? Kamala Harris for being a black woman? As a recent article by Khiara Bridges shows us, thinking about oppression in this way misses the nuance of how different forms of oppression intersect with one another. In Race, Pregnancy, and the Opioid Epidemic, Khiara Bridges weaves together some of today’s most perplexing issues.

Bridges begins with a puzzle. White privilege, as commonly understood, is supposed to promote the life outcomes of white individuals (and, conversely, undermine those of people of color). If that is the case, how can we explain the opioid crisis that has disproportionately undermined the life expectancy of white individuals? The problem can be stated more universally, beyond the opioid context: “[W]hen bad things happen to white people—when the jobs and the industries on which they once relied disappear, when their preferred university denies them admission, when they lose a promotion to a nonwhite candidate, when they die from suicide and drug overdoses at unprecedented rates—we are left to believe that white people experiencing these negative consequences did not have white privilege[.]” (P. 774.) Some might even argue that white privilege never existed to begin with. Perhaps other axes of oppression—sex or poverty—have more oppressive force than race. Continue reading "Intersectionality in the Opioid Crisis: Anti-Black Racism and White, Pregnant, Opioid Users"

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