Regulating Retail Vacancy Rates: A Survey Article
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Will Bunting, Regulating Retail Vacancy Rates: A Survey, 51 Real Estate Law Journal 127 (2023)Clicking on the button will copy the full recommended citation.
2023
No Migration Without Taxation: State Exit Taxes Article
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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.
A Simple Unifying Framework for Categorizing Disparate Risk Transactions: Securities Investments, Insurance, Gambling, and Derivative Contracts Article
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Will Bunting, A Simple Unifying Framework for Categorizing Disparate Risk Transactions: Securities Investments, Insurance, Gambling, and Derivative Contracts, 25 U. Pa. J. Bus. L. 295 (2023)Clicking on the button will copy the full recommended citation.
The Article proceeds as follows: Part II examines how the law defines the following three risk transactions: (1) securities investments, (2) insurance, and (3) gambling. Part III introduces a theoretical model of bilateral risk transactions and applies this model to the three different types of risk transactions surveyed in Part II. Part III introduces three baseline models of bilateral risk transaction: (1) bilateral risk transfer, (2) bilateral risk creation, and (3) bilateral risk destruction and extends these models to include two additional variables: (1) endogenous risk, and (2) risk mitigation. The addition of these two variables narrows the broad definition of a bilateral risk transaction to include the three risk transactions examined in Part II. Other types of bilateral risk transactions are also considered, including derivative contracts. Highlighting two main regulatory concerns in connection with bilateral risk transactions, (1) moral hazard or fraud, and (2) risk mitigation, Part IV summarizes how the current regulatory environment addresses these two concerns and explores possible regulatory gaps suggested by the baseline models.
Experience of Parents with Psychiatric Disabilities with Child Welfare Involvement: Perspectives from Parents and Staff Providing Legal Services Article
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Miriam Heyman et al., Experience of Parents with Psychiatric Disabilities with Child Welfare Involvement: Perspectives from Parents and Staff Providing Legal Services, 101 Child Welfare 83 (2023)Clicking on the button will copy the full recommended citation.
Parents with psychiatric disabilities confront extensive discrimination, often resulting in child welfare system involvement. Stigma and discrimination pervade the experiences of parents with psychiatric disabilities within the child welfare system, resulting in poor outcomes. This study explores these experiences, including barriers and facilitators to the provision of supports and meaningful legal services, for parents with psychiatric disabilities who have child welfare system involvement. Through interviews with 13 employees and seven parents with psychiatric disabilities, barriers and facilitators are identified. Implications for the child welfare and legal professions, and for future research, are highlighted.
The Internet Tax Freedom Act at 25 Article
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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.
Multistate Business Entities Article
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Andrew D. Appleby and Tomer Stein, Multistate Business Entities, 55 Ariz. St. L.J. 1 (2023)Clicking on the button will copy the full recommended citation.
The binary legislative choice between state and federal regulation of a firm’s internal affairs is deeply entrenched in the existing literature and policy discussions. Alas, this regulatory menu contains a false and distortive dichotomy. The state-federal dichotomy is false because multistate formation and regulation of business entities are possible as well. This dichotomy is distortive because it deprives policymakers of the advantages of multistate corporations and other business entities. In this Article, we demonstrate that a multistate business entities regime can resolve multiple predicaments that presently bring about unfairness and inefficiencies in both business entities law and business entities taxation.
A multistate business entity regime promises to be beneficial for both the participating states and the business entities themselves. For example, by choosing to co-compete, states that have so far lost in the market for corporate charters would be able to generate—and divide among themselves—substantial business and tax revenues by offering the corporations formed under their regime unique tax and corporate law benefits. In this way, for example, a “tri-state” co-op, offered by New York, Connecticut, and New Jersey, could compete with Delaware; and a “rust belt” coalition could retain industry charters within its multistate jurisdiction.
The hitherto unnoticed potential for a multistate entity regime aligns with the Framers’ vision for state cooperation under the Constitution’s Compact Clause. Further yet, setting up this regime would vastly improve the functioning of the market for both corporate charters and other business entities. This regime would allow states to vigorously compete for both managers and investors, boost stakeholder advocacy, and accomplish ESG goals to the benefit of their constituents.
Unified Patent Court and International Law Book Chapter
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Klara Van der Ploeg, Unified Patent Court and International Law, in European Patent Law: The Unified Patent Court and the European Patent Convention (Duncan Matthews and Paul Torremans eds., De Gruyter, 2023)Clicking on the button will copy the full recommended citation.
This chapter is the first examination the world’s newest international court—the Unified Patent Court (UPC)—from the perspective of international law. Identifying the institutional tensions inherent in its architecture due to the close links to the European Court of Justice and national courts as well as its origins in the European patent law, the chapter elaborates the essential implications arising for the UPC by virtue of it being an international court and international law being its governing law. Drawing on the literatures on international regime interplay, functions and authority of international courts and business and human rights, as well as the experience of the investor-state dispute settlement, the chapter elaborates the salient interpretative choices that the UPC will need to make that will not only determine its day-to-day operation and case outcomes, but also the public perceptions of its authority and legitimacy. The chapter argues that if recent international legal scholarship and practice suggest anything, the UPC will be best served by an integrative approach to (its) international law—especially given patent law’s significant distributive effects.
The Major Questions Doctrine Post-West Virginia v. EPA Article
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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.
Third Party and Self-Created Trusts: A Modern Look Book
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Rebecca C. Morgan et al., Third Party and Self-Created Trusts: A Modern Look (American Bar Association, 2023)Clicking on the button will copy the full recommended citation.
International Legal Developments Year in Review: 2022: Introduction Article
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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.