Oct 10, 2024 Phyllis C. TaiteTrusts & Estates
Miranda Perry Fleischer,
A New Look at Old Money, 98
S. Cal. L. Rev. __ (forthcoming, 2024) available at
SSRN (March 4, 2024).
Professor Miranda Fleischer contributes to the wealth tax discourse by analyzing a taxation theory proposed a century ago by philosopher Eugenio Rignano: an inheritance tax imposed on old, unearned wealth. This inheritance tax would facilitate the goals of a wealth tax, including combating wealth concentration and providing greater tax preferences for earned wealth. Following a brief historical overview of transfer taxes and proposed alternatives, Fleischer analyzes the pros and cons of a wealth tax, suggests key design structures for implementation, and concludes with policy justifications in support of such a tax. This article stands out because Professor Fleischer proposes a comprehensive structural design for the tax and addresses key policy questions that would make a Rignano tax politically feasible and administratively workable.
In the overview, Professor Fleischer describes key features of the current transfer tax system, including the imposition of the tax on the donor, higher lifetime exemptions, and reduced rates. The effect of increasing exemptions is that fewer estates are required to pay the tax and more wealth is transferred tax-free. Further, the current tax design creates other avenues for the transfer of tax-free wealth such as the annual exclusion, even while recipients pay no income tax on gift and estate transfers, irrespective of their size. Fleischer discusses alternative proposals for taxing wealth such as imposing an income tax on gifts and bequests (subjecting them to similar tax rules applicable to lottery winnings), imposing a carryover basis in place of a stepped-up basis for purposes of the capital gains tax, and various other models such as inheritance and accession taxes. Continue reading "New Money: No Problem, No Tax"
Oct 9, 2024 Kenneth W. SimonsTorts
Leo Boonzaier,
Is a tort a failure to do what one ought?,
in New Directions in Private Law Theory 165 (Fabiana Bettini, Martin Fischer, Charles Mitchell, Prince Saprai eds., 2023).
“Is a tort a failure to do what one ought?,” asks the South African scholar Leo Boonzaier. In this book chapter, Boonzaier provides an insightful analysis of the question, which he frames as follows. A distinguishing feature of many non-instrumentalist theories of tort law is how they conceive of a tort—as a wrong, not merely as a cost or loss that the law has an interest in efficiently deterring through a compensatory remedy. But what does it mean to characterize negligent conduct or an intentional battery or a defamatory statement as a wrong?
Here is a very appealing answer: “The commission of a tort is a failure by the tortfeasor to do what, in the law’s view, he ought to do, all things considered.” (P. 169.) This answer helps explain why negligence is defined as unreasonable conduct, and why tort law sometimes awards injunctions to prevent the commission of torts and sometimes awards punitive damages. Note that the failure in question is the unjustifiability of the actor’s conduct, not the culpability of the actor. After all, tort law employs objective tests and does not recognize excuses: “one may blamelessly fail to do what one ought.” (P. 170.) Continue reading "Why The Law Of Tort Ought Not Be Limited To What We Ought Not Do"
Oct 8, 2024 Natalie RamTechnology Law
Following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health, pregnant women seeking to terminate a pregnancy, and medical providers who care for them, have found themselves increasingly subject to invasive law enforcement scrutiny in many states. For instance, while many states’ anti-abortion laws permit abortion if the pregnant person was the victim of a sexual assault, many of these laws require that physicians verify that the sexual assault was reported to law enforcement. The exception thus compels physicians to serve as handmaidens to the police.
Yet the abortion context is hardly the first or only one where policing has thrust itself into medical practice. As Teneille R. Brown observes in her new article, When Doctors Become Cops, from gender-affirming care, to prescription drug monitoring programs, to law enforcement demands for DNA samples from hospital staff, policing often encroaches on patient privacy. These intrusions generate medical mistrust that undermines both individual and public health. Moreover, this medical mistrust is likely to exacerbate inequities in population health, as police mistrust is at “record highs” and structural inequities are present in “virtually all aspects of the criminal legal system.” Brown persuasively argues that “[t]o respect patient autonomy, repair medical mistrust, and promote individual and public health,” “law enforcement and health care need to be more completely divorced from one another.” Continue reading "Policing Patient Privacy"
Oct 7, 2024 Miranda StewartTax Law
Sometimes a book arrives at just the right moment in history. That is the case for The United Nations in Global Tax Coordination by Dr. Nikki J. Teo, which tells the story of the United Nations (UN) Fiscal Commission, a short-lived attempt in the mid-20th century to create an international tax process that would reflect and support the interests of developing countries. The product of years of doctoral research, the book was published just before the UN General Assembly adopted Resolution 78/230 (22 December 2023) to establish a new UN process for international tax cooperation. It has deservedly won the 2024 IBFD Frans Vanistandael Award for a publication in international taxation.
The United Nations in Global Tax Coordination is a work of substance about tax cooperation at the UN and before it, the work of the Fiscal Committee of the League of Nations. Teo explores the growth and decline of the UN Fiscal Commission at a time that saw a growing divide between “developed” and “developing” countries. She draws on archives of the UN, the League, and British and US governments to tell an intriguing story of shifting geopolitical, economic, and business alliances during the second world war, and Cold War gameplaying. Continue reading "The Voice of All Nations in Global Tax Coordination"
Oct 4, 2024 Brooke D. ColemanCourts Law
Which judge decides a case? This evergreen civil procedure question occupies many a civil procedure class. Discussions of Erie and related topics often focus on the litigating parties’ motivations and whether their filings were strategic, gamesmanship, or some mix of both. In Constitutional Case Management, Katherine Macfarlane shifts our focus to the courts themselves by exploring the mechanisms courts use to assign cases.
Macfarlane begins by exploring and questioning the source of case assignment power. Article III empowers Congress to create inferior courts, which includes the power to structure the lower federal judicial system. This power includes case assignment. For example, Congress has adopted laws allowing federal judges to sit by designation. These statutes, which authorize judges appointed to a specific federal court to temporarily sit elsewhere, change the cases they would otherwise hear in their home courts. Continue reading "Case Assignment & Its Constitutional Implications"
Oct 3, 2024 Ezra RosserProperty
Elizabeth Elia,
Embrace the Suck: Why States and Localities Should Use Property Rights to Fix Broken Housing Voucher Programs, 28
Lewis & Clark L. Rev. __ (forthcoming 2025), available at
SSRN (June 17, 2024).
Embrace the Suck: Why States and Localities Should Use Property Rights to Fix Broken Housing Voucher Programs is a wonderful academic contribution that moves fluidly from high theory to more grounded, practical questions. By combining detailed discussion of how housing vouchers work in practice with insights gleaned from more progressive property scholarship, Professor Elizabeth Elia’s article succeeds in speaking across the practical/theoretical divide.
Those whose work focuses on subsidized housing should read the article. And, it also should interest those who focus on broader theory because it stands as an example of how theory can open up the range of policy alternatives. Continue reading "Moving Beyond Source of Income Protection by Enhancing Housing Vouchers"
Oct 2, 2024 Juliet StumpfLexImmigration
“History,” Max Beerbohm said, “does not repeat itself. The historians repeat one another.”
This quote may (or may not) be an entirely accurate reflection of stare decisis, the notion that stability in the law relies on courts faithfully following past precedent. But the quote makes room for the recognition that stare decisis carries racist precedent from centuries past to perpetuate modern systemic racial subordination in modern immigration law. Ahilan Arulanantham’s Reversing Racist Precedent, forthcoming in the Georgetown Law Journal, proposes a systemic disinfectant for this problem: applying constitutional limitations on race-based state action to racist judicial precedent. Continue reading "Disinfecting Judicial Racism"
Oct 1, 2024 Hoi KongInternational & Comparative Law
With Responsive Judicial Review: Democracy and Dysfunction in the Modern Age, Rosalind Dixon has made an important contribution to the literatures on judicial review and comparative constitutional law. Her argument is subtle and detailed, drawing on an extensive body of academic literature and case studies from around the world. This brief review will highlight two aspects of the argument that make the book an indispensable work: (1) its overview of relevant academic debates and (2) its original contributions to those debates.
Overview of Relevant Academic Debates
Dixon provides a concise, yet thorough, overview of a series of academic debates about judicial review. One debate focuses on the capacities of judges and courts. Dixon notes that constitutional theorists have tended towards either an “everything” or “nothing” view of judges and courts. (P. 13.) Dixon places Ronald Dworkin in the “everything” camp and describes its members as tending “to assume a heroic conception of individual judicial skill and capacity and even more ambitious view of what courts can achieve as institutions.” (P. 13.) Dixon puts Gerry Rosenberg in the “nothing” camp. She argues that according to this camp’s members, judges are “deeply unheroic in character” and courts either are “almost entirely ineffective in creating social and political change” or they make such change difficult “by adding to the perceived legitimacy of deeply flawed existing democratic constitutional structures.” (P. 13.) Continue reading "Democracy and Dysfunction"
Sep 30, 2024 Allison Brownell TirresLegal History
Dov Fox & Mary Ziegler,
The Lost History of “History and Tradition,
” 98
S. Cal. L. Rev. __ (forthcoming, 2025), available at
SSRN (May 5, 2024).
With its decision in Dobbs v. Jackson Women’s Health Organization (2022), the Supreme Court overruled five decades of precedent guaranteeing a constitutional right to abortion, on the basis that such right was not supported by “history and tradition.” The Court has utilized this same rationale in other recent high-profile, and highly controversial, rulings. Conservatives on the Court claim that the lens of “history and tradition” is neutral, objective, and apolitical, unlike other modes of constitutional interpretation.
Many constitutional law scholars and legal historians are skeptical, to put it mildly, of the “history and tradition” approach. They argue that this method is just as susceptible to subjectivity and political manipulation. After all, whose history will one take into account, and what traditions? When does the historical query begin, and when does it end? The Court’s conservative turn has spurred a proliferation of scholarly work that challenges or seeks to reframe the judiciary’s use of history in constitutional interpretation. In a thought-provoking addition to this canon, Dov Fox and Mary Ziegler ask us to consider the history of the “history and tradition” test itself, to fascinating result. In The Lost History of “History and Tradition,” they demonstrate how the Court’s recent formulation of the test is just that: an intentional reframing of an interpretive tool that, in various forms, has been used by courts at least since the late nineteenth century. Continue reading "Entrenched or Evolving? “History and Tradition” in Constitutional Jurisprudence"
Sep 27, 2024 Jessica SilbeyIntellectual Property Law
Guy Rub,
Reimagining Digital Libraries, 113
Geo. L.J. __ (forthcoming, 2024), available at
SSRN (Feb. 19, 2024).
Do you ever wonder how it is that libraries can lend books repeatedly, while copyright owners (e.g., book authors) are granted the exclusive right to distribute their copyrighted works? Or how publishers make money selling books at retail prices when a person can resell books (or buy used books) for much less (hello Amazon Used Books for under a dollar!)? The reason is because of copyright’s “first sale” doctrine, 17 U.S.C. § 109, codifying the common law’s exhaustion principle, which says owners of lawfully made copies are allowed to dispose of those copies without regard to copyright law. In other words: the right to distribute is “exhausted” with the first sale. This means we can resell, lend, or give away our books. What we can’t do is make copies of them.
And that is where the concept of “digital lending” runs headlong into copyright law. When libraries buy books, they can lend them without restrictions. When libraries lend e-books, those e-books come with contractual provisions limiting their lending in substantial ways because reading an e-book requires making a copy, which is not exhausted by the first sale doctrine. As the Supreme Court has said (in the patent context, which has a similar first sale principle): “exhaustion applies only to the particular item sold, and not to reproductions.” Continue reading "How Do You Like your Books?"
