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Ellen S. Podgor, Symposium Introduction: White Collar Crime: The Past, Present & Future, 2 Stetson Business Law Review i (2023)Clicking on the button will copy the full recommended citation.
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Kristen David Adams, The Move toward an Indigenous Virgin Islands Jurisprudence: Banks in Its Second Decade, 91 Fordham L. Rev. 1601 (2023)Clicking on the button will copy the full recommended citation.
In 2011, the Supreme Court of the U.S. Virgin Islands decided Banks v. International Rental & Leasing Corp. and, with that decision, introduced a new era in Virgin Islands jurisprudence that embraced a much more active role for Virgin Islands courts and a correspondingly diminished role for the American Law Institute's restatements. This Essay examines what I will call "second-generation" decisions referencing Banks with the goal of determining whether Banks and its progeny have met, or are at least in the process of meeting, "the goal of establishing 'an indigenous Virgin Islands jurisprudence "' set by the Banks court. Ultimately, this Essay concludes that this question has now been answered in the affirmative, and strongly so.
In reaching this conclusion, this Essay opens by tracking Virgin Islands courts' increased willingness to reject and modify restatement rules, increasingly clear treatment of the restatements as secondary sources, and increased willingness to adopt minority rules when doing so is the best fit for the Virgin Islands. It continues by exploring several changes in the Banks analysis over time, several reasons why courts may decline to do a Banks analysis, and several cases that demonstrate that Banks 's meaning continues to evolve.
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Jason Bent, Compensability, Opportunism, and the Race to the Bottom: A View from (near) the Bottom, 37 A.B.A. J. Lab. & Emp. L. 221 (2023)Clicking on the button will copy the full recommended citation.
This article is a contribution to a symposium marking the fiftieth anniversary of the National Commission on State Workmen’s Compensation Laws (National Commission). My perspective on the successes and shortcomings of the National Commission is informed by my vantage point—the State of Florida, a formidable contender in the legislative “race to the bottom” that followed the early reforms spurred by the National Commission’s admirable work. The workers’ compensation regime in Florida has undergone such significant retrenchment over recent decades that at least one Florida judge and some academic observers now hold the view that it has crossed into unconstitutionality. This article, then, is a view of the state of workers’ compensation
law from near the bottom.
The article proceeds in three parts: first, a look at the “major contributing cause” rule as applied in Florida and the resulting employer opportunism that undermines worker expectations; second, an examination of how the compensability hurdles for diseases in Florida usually permit employers to escape the costs imposed by occupational diseases; and finally, an exploration of possible solutions. Ultimately, the current inadequate and inequitable system at the bottom of the workers’ compensation hierarchy needs to be addressed by state legislatures (under renewed threat of federal action, if necessary), by state judiciaries, or by tightened federal regulation of workplaces with meaningful front-end enforcement before accidents or diseases occur, such as
through effective reforms to the Occupational Safety and Health Act of 1970 (OSHA).
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Ellen S. Podgor and Wilma F. Metcalf, The Fox Guarding the Henhouse: Government Review of Attorney-Client Privileged Material in White Collar Cases, 103 B.U. L. Rev. 475 (2023)Clicking on the button will copy the full recommended citation.
Government review of privileged material seized during law office searches or following the subpoena of an attorney to a grand jury, raise genuine concerns that implicate attorney-client privilege, work product doctrine, and ethical mandates of confidentiality. Currently, the review process may be through a Department of Justice taint or filter team, a court appointed special master, or a hybrid of these two approaches. When applied to high-profile cases such as Michael Avenatti, Rudy Giuliani, and Michael Cohen, one sees an inconsistent approach that is largely controlled by the government. Problems arise not only from this lack of uniformity, but also from certain inherent deficiencies in using a taint/filter team to review privileged material.
This Article offers a reconfiguration of this review process starting with the government’s initial decision to opt for a law office search as opposed to grand jury subpoenas duces tecum. It calls for an expansion of ethical mandates to increase the neutrality of this review process, as well as instituting procedures to ensure an independent review of privileged documents that does not compromise a defendant’s right to due process and right to effective assistance of counsel. Although fortifying the judicial role in reviewing privileged materials comes with certain costs, the aggregate benefits provide a more balanced judicial process.
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Erin E. Andrews et al., Rethinking Systematic Ableism: A Response to Zagouras, Ellick & Aulisio, 18 Clinical Ethics 7 (2023)Clicking on the button will copy the full recommended citation.
This article is a response to Zagouras, Ellick, and Aulisio who presented a case study justifying the questioning of the capacity and autonomy of a young woman with a physical disability who was pregnant and facing coercive pressure to terminate.
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Ashley Krenelka Chase, Let’s All Be . . . Georgia? Expanding Access to Justice for Incarcerated Litigants by Rewriting the Rules for Writing the Law, 74 S.C. L. Rev. 389 (2023)Clicking on the button will copy the full recommended citation.
In 2020, the United States Supreme Court paved the way for a statutory publishing scheme that would enhance access to primary (and some secondary) legal information – they highlighted Georgia’s statutory publishing process as a way to pull some secondary material into the public domain under the government edicts doctrine. To be clear, the Supreme Court set out to more clearly define the classification of government edicts under Copyright law and not to set forth a new publishing scheme for legal materials, but the result was a glimpse into how federal and state governments could approach the publication of legal information, so information can be consistently and equitably made available to incarcerated litigants in either a print or electronic format, thereby expanding access to the Courts.
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Jason S. Palmer and Kimberly Y. W. Holst, International Legal Developments Year in Review: 2022: Introduction, 57 Year in Review: An Annual Survey of International Legal Developments and Publications of the ABA Section of International Law 1 (2023)Clicking on the button will copy the full recommended citation.
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Andrew D. Appleby, No Migration Without Taxation: State Exit Taxes, 60 Harv. J. on Legis. 55 (2023)Clicking on the button will copy the full recommended citation.
The movement of people and the movement of money are often discrete. As such, governments can address the effects of each separately. Because residence provides a general jurisdictional basis for state personal income taxation, however, money often moves with people. States must disentangle the two to prevent tax base erosion and improve distributional equity, particularly with many highnet-worth individuals migrating to states with more favorable tax regimes. A state exit tax may be the answer.
This Article begins by examining exit tax theory and advancing novel applications of theories that support subnational exit taxation, both domestically and internationally. With a robust theoretical and technical foundation, this Article turns to state and local exit tax design. This discussion examines constitutional constraints to address specific tax base migration challenges focusing on the justifications, distributional impact, and optimal exit tax design features to address each situation.
If a state has a solid theoretical foundation and incorporates proper design principles, as this Article provides, an exit tax can effectively mitigate tax base migration while aligning with prevailing policy goals and avoiding constitutional infirmities.
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Jaclyn Lopez, The Major Questions Doctrine Post-West Virginia v. EPA, 54 Trends 4 (2023)Clicking on the button will copy the full recommended citation.
By now most have heard of the landmark Supreme Court case West Virginia v. EPA, 597 U.S. _,
2022, which—with Chief Justice Roberts delivering the Court’s opinion—clarified and cemented a new rule of statutory interpretation called the “major questions doctrine” (MQD). This prudential doctrine requires that an agency point to a “clear congressional authorization” when claiming authority from a statute. It is unclear at this time how frequently litigants and lower courts will employ this doctrine, which the Supreme Court devised to address a “recurring problem” of agency overreach, or whether the test will come up only in “extraordinary cases.” While the Court declined to articulate a specific standard for the lower courts to follow, it is possible to glean the contours of the doctrine from the majority opinion and concurrence.
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Walter Hellerstein and Andrew D. Appleby, The Internet Tax Freedom Act at 25, 107 Tax Notes State 7 (2023)Clicking on the button will copy the full recommended citation.
In October 1998, Congress enacted the Internet Tax Freedom Act (ITFA), a temporary three-year “moratorium” on the enactment of new state and local “taxes on Internet access” and on “multiple or discriminatory taxes on electronic commerce.” After extending the act temporarily several times, Congress, in 2016, finally and controversially struck the language temporarily extending the act, thereby making it permanent.
With its idiosyncratic legislative history and statutory language, as well as the recent attention it has received in connection with legal challenges to digital services and analogous taxes, we thought it would be appropriate to commemorate ITFA’s 25th birthday by reviewing the act and the litigation it has spawned and to consider whether it is “fit for service” in today’s digital economy.