The Impact of Foreign Investors\u27 Challenges to Domestic Regulations

We examine how foreign investors’ ability to challenge allegedly harmful host-country regulations before an international arbitral tribunal through investor-state dispute settlement (ISDS) affects regulatory policymaking and the value of foreign direct investment. Consistent with ISDS deterring costly host-country regulations, following an ISDS challenge of an industry-level regulation, the equity values of firms in the affected industry increase significantly. Domestic firms without ready access to ISDS also experience higher equity values, suggesting that our results are not driven by expectations of future damage awards. The results are concentrated in developed countries, where stronger legal institutions likely bind governments to their previous commitments to foreign investors. Additionally, capital expenditures by foreign firms in the host country fall before a case is filed and then increase significantly afterward. Taken together, our evidence suggests that ISDS deters domestic regulatory interventions that decrease the profitability of existing foreign direct investments in the host country

Chapter 4: Unfair and Deceptive Robots

Robots, like household helpers, personal digital assistants, automated cars, and personal drones, are or will soon be available to consumers. These robots raise common consumer protection issues, such as fraud, privacy, data security, and risks to health, physical safety, and finances. Robots also raise new consumer protection issues. Yet, it is unclear what consumer protection rules for robots should look like. The thesis of the chapter is that the FTC\u27s grant of authority and existing jurisprudence make it the preferable regulatory agency for protecting consumers who buy and interact with robots. The FTC has proven to be a capable regulator of communications, organizational procedures, and design, which are the three crucial concepts for safe consumer robots. Consumer robotics is an expansive field with great potential. A robust response by the FTC will allow the consumer robotics industry to thrive while preserving consumer trust and keeping consumers safe from harm

Racial Capitalism and International Tax Law: The Story of Global Jim Crow

Global tax policy has long determined which states can access the resources necessary to flourish. Today, even the wealthiest states struggle to tax rich individuals and multinationals. Anti-Black racism has enriched affluent states at the expense of marginalized ones and undermined the taxing power of all nations. In a compelling narrative interwoven with personal storytelling, Racial Capitalism and International Tax Law: The Story of Global Jim Crow connects Dr. Martin Luther King Jr.\u27s metaphor of the bad check -representing unfulfilled promises of freedom and equality to Black Americans-to contemporary anti-Black global tax policies. The book uncovers lost connections, such as those between Edwin Seligman, an architect of our global tax system, and the Dunning School, which laid the foundation for Jim Crow laws, and between Stanley Surrey, a Harvard professor and advisor to President John F. Kennedy, and key moments of the Cold War. Furthermore, it takes a global view and reveals how racial panic triggered by African decolonization allowed an exclusive club of white countries to deliver a second bad check to newly sovereign states like Kenya and Nigeria. By circumventing the inclusive one-country, one-vote system of the United Nations, the OECD and its double tax treaty dismantled the generous arrangements that helped Europe rebuild after both World Wars. Racial Capitalism and International Tax Law exposes the surprising role anti-Black racism played in shaping an international tax system that benefits billionaires at the expense of billions of people. This eye-opening account challenges readers to rethink the global tax system and its profound impact on racial and economic justice.https://scholarship.law.bu.edu/books/1377/thumbnail.jp

Rebalancing Retirement: How 401(k) Plans Exacerbate Inequality and What We Can Do About It

Incentives for individuals to save for retirement currently total 1.5% of US GDP. For that substantial investment, we get a system that actually deepens wealth inequality. The top 10% of earners capture 60% of the associated tax benefits, and employer matching contributions disproportionately favor the highest earners. Although defined contribution plans have long been subject to non-discrimination requirements aimed at ensuring that benefits do not accrue predominantly to the wealthiest participants, these rules have little bite. In an irony, we estimate that the entire 401(k) system would fail the non-discrimination test that every employer offering such a plan is expected to pass. This Article examines the structural causes of these disparities, including growing income inequality, critiques the shortcomings of the non-discrimination rules, and proposes practical reforms to the 401(k) system, alongside a supporting increase in the minimum wage. Our reforms would realign public policy to address the related needs for more economic equality and to provide equitable incentives for retirement savings for the many, not just the few. Ultimately, these reform proposals seek to get the most value for the American public out of the considerable retirement tax expenditures under §401(k)

To Save Democracy from Juristocracy: J.B. Thayer and Congressional Power After the Civil War

As many Americans once again worry that their democracy is hostage to judicial power, this Article is an archival reconstruction of how famed Harvard law professor James Bradley Thayer set out on a mission to stave off the syndrome before it stuck—though he failed in the end. The Article shows how Thayer (1831–1902) arrived at his epoch-making theory of judicial deference to safeguard Congress’s power after the democratic revolutions of the Civil War and Reconstruction. Indeed, he hoped to see America transformed in the direction of British legislative supremacy, in which Parliament—and not the courts—reigned supreme. Scandalized by growing ventures to weaponize the federal judiciary so as to preempt the newly federalized American democracy, Thayer bet on something new in global history: mass democracy on a national scale, understood as an experiment in collective learning. The Article thereby provides a new periodization and transatlantic contextualization of the struggles over judicial fiat routinely associated with the Supreme Court’s defense of laissez-faire in the early twentieth century. And yet, as this Article emphasizes, Thayer failed in the long run. His democratizing fix, judicial self-restraint under the “clear error standard”—which this Article shows had the same English roots as his democratic and parliamentary theory—has tragically misled reform. It embroiled Americans in a neverending debate on judicial “restraint,” even as Thayer proposed a doctrinal prescription encouraging judges to limit their power themselves. He therefore postponed an institutional remedy for an institutional syndrome. For this reason, his mission, in spite of its partial implementation after his death, now has to be rescued in its own right. Judicial self-restraint has not prevented the continuation and even the intensification of the very juristocratic syndrome Thayer rightly found so troubling. If Americans still remain with him at the dawn of our commitment to democracy, they will have to save it from judges in a new way all their own

Reassessing Corporate Philanthropy from a Tax Perspective

U.S. corporations make and deduct charitable contributions in excess of $20 billion annually. This Article reassesses corporate philanthropy from a tax perspective, asking first whether the federal tax subsidy for corporate philanthropy is greater than the subsidy for the alternative stakeholder philanthropy, as some commentators have previously found. The answer: it depends. The relative degree of subsidy depends on corporate and individual tax rates, obviously, but also on the incidence of corporate philanthropy, i.e., who bears the cost, which is generally unclear, as well as other details, such as whether individual stakeholders itemize deductions. At current tax rates, however, any outsized subsidies for corporate philanthropy result to a large degree from the constriction in itemizing that followed from the 2017 Tax Cuts and Jobs Act). And many would view the effective restoration of individual deductions for charitable contributions as a positive feature of corporate philanthropy rather than as a bug. Moreover, from a policy perspective, corporate philanthropy provides numerous advantages over individual philanthropy that have not been discussed or emphasized in the literature. Corporate philanthropy mitigates the inequitable “upside-down” effect of the individual deduction for philanthropy that disproportionately favors charities supported by high-income taxpayers and may mitigate the windfall arising from stakeholder contributions of appreciated securities. Corporate philanthropy also is highly responsive to tax incentives, often provides utility to multiple stakeholders, and even transfers a portion of the cost of U.S. philanthropy to non-U.S. stakeholders. There is, in short, much to like about corporate philanthropy from a tax (and non-tax) policy perspective

Spending Programs and the New Roberts Court

The Supreme Court is poised to place new limits on Congress’s spending power at the urging of states vying for regulatory dominance, particularly in health care and public health. This article is the first to highlight and catalog the throughlines of argumentation, which sparked after states successfully challenged the ACA but have grown into opposing more than Medicaid’s cooperative federalism. This means federal and state programs that heavily rely on federal spending power are at risk, so studying this pattern is imperative. The article begins with a descriptive account of increasing spending power challenges, which make use of converging factors that include the Court’s revived federalism revolution, demonstrated willingness to revisit precedent, and heightened formalism. Part I incorporates three recent Supreme Court decisions into this landscape: Health and Hospital Corporation v. Talevski, Medina v. Planned Parenthood, and Moyle v. U.S. Part II provides a theoretical roadmap that categorizes and analyzes patterns in litigation currently challenging spending programs. This mapping reveals four lines of argumentation, three testing the breadth of the spending power and one that would limit private enforcement. At least two of the theories are likely to gain traction; indeed, Medina showed some shifts in language, theory, and doctrine. Additionally, these theories cite federalism principles rooted in a dual-sovereignty governance paradigm. But conditional spending relies on cooperative federalism, which is characterized more by porosity than by bright lines. Accordingly, Part III considers gaps and ramifications in these efforts, which could produce shifts in the scope, interpretation, and enforcement of longstanding social programs. Congress may not choose to work more with states if the spending power becomes harder to exercise; and, states depend on federal funding for the safety net’s fiscal stability. Also, federal spending has often protected civil rights, so limits on spending programs may contribute to retrenchment

Reply Brief for Plaintiff-Appellant, Jane Roe v. Marshall University Board of Governors

Marshall does not dispute that Jane Roe’s experience as a student there was marred by fellow-student John Doe’s repeated sexual harassment. Doe’s harassment of Roe escalated on September 3, 2022, when he sexually assaulted her at a Marshall-football-watch party near campus. Instead of supporting Roe to confront the assault’s aftermath or the lingering on campus hostile environment, Marshall punished her, pretextually shuffling her through an investigation riddled with procedural deficits, in an attempt to cover its tracks. Marshall argues it isn’t liable because it lacks control over all off-campus sexual assaults. But it undermines itself by admitting it exercised control over the off-campus context at issue here to punish Roe, purportedly for underage drinking. It also ignores its control over the harassment that pervaded its campus—the hostile environment inhibiting Roe’s access to the full benefits of education at Marshall. And though it chose not to, it had enough control to remedy Roe’s educational harms. Marshall argues it was not deliberately indifferent because it also punished Doe and instituted an interim no-contact order. But its conduct was clearly unreasonable because it did not tell Roe whether the no-contact order remained effective following its investigation into her, address Doe’s prior sexual abuse, or offer Roe supportive measures, all while punishing her. Marshall also denies that its response was retaliatory. It asks this Court to ignore binding precedent about what it means to engage in protected activity and what counts as a materially adverse action. And it refuses to engage with the facts showing its real reason for punishing Roe was her protected activity and its proffered reason for punishing Roe, underage drinking, was pretextual. The evidence shows that Marshall deviated from its procedures to punish Roe, did not investigate other students that it knew were drinking underage, and maintained per se retaliatory policies in its student-conduct office. Across the board, Marshall accuses Roe of taking creative license with the facts. But it’s Marshall that asks this Court to flip the summary-judgment standard on its head. Applying that standard properly—that is, viewing the facts and drawing reasonable inferences in Roe\u27s favor—this Court should reverse the district court’s grant of summary judgment and remand for trial

The antimicrobial resistance cube: a framework for identifying policy gaps and driving action

WHO has summarised its commitment to Universal Health Coverage (UHC) with the UHC cube diagram,1,2 a globally recognised visual representation of policy choices to promote UHC and prioritise investments in health-care interventions. Inspired by the concept of the UHC cube, we propose a streamlined framework for policy makers, academics, and civil society to examine a country’s response to antimicrobial resistance (AMR)— the AMR cube. The AMR cube integrates three essential dimensions: One Health contexts, interventions, and resources, each representing a critical aspect of combating AMR

Trump Brings the Racism and the Grift

In this episode, we discuss how Trump’s first week in office reflects what we already knew. Racism remains one of Trump’s favorite political tactics. He’ll use it to demean and delegitimize political opponents, and to distract from a separate pillar of his administration: massive self-dealing. As always, Florida stands out as a model for how opportunistic politicians can leverage racism, sexism and homophobia to grift the public and turn a profit, all while undermining every institution necessary for meaningful democracy. We also note that Trump’s racist rhetoric is effective, in part, because supposedly liberal institutions – like elite universities – have long failed to offer a compelling counter-narrative