Money and Federalism

The United States is the only country in the world in which both federal and state governments possess independent and yet overlapping authority for bank chartering, regulation, and supervision. The roots of this unique dual banking system can be traced back to the Constitution, written almost a century before banks rose to the apex of the financial system and became the dominant source of money. Beginning with the landmark Supreme Court decision in McCulloch v. Maryland, this system has been a wellspring of jurisdictional conflict. Yet over time, this highly fragmented and hotly contested system has also produced strong federal oversight and a financial safety net that protects bank depositors, prevents destabilizing runs, and promotes monetary stability. This system is now under stress. The source of this stress is a new breed of technology-driven financial institutions, licensed and regulated almost entirely at the state-level, that provide money and payments outside the perimeter of both conventional bank regulation and the financial safety net. This Article examines the rise of these new monetary institutions, the state-level regulatory frameworks that govern them, and the nature of the threats they may one day pose to monetary stability. It also examines the legal and policy cases for federal supremacy over the regulation of these new institutions and advances two potential models: one based on complete federal preemption, the other more tailored to reflect the narrow yet critical objective of promoting public confidence and trust in the U.S. monetary system

It’s Not So Simple: An Examination of How the Internal Revenue Code Fails to Contemplate the Economic Realities of Individuals With Disabilities and Their Families

Families with disabled students face extra costs associated with providing their child with the same education that other students get for free. Even though these costs are spent with the explicit purpose of supporting their child’s disability-informed care and are not incurred but for their disability (“but-for costs”), some of these costs are not deductible and others are subject to unnecessary ambiguity when it comes to their deductibility. Families with disabled students are forced to reckon with arbitrary distinctions if they want to receive any favorable tax treatment on but-for costs. This is because the relevant provision in the Internal Revenue Code, Section 213, was written and consequentially interpreted during a time when disabled people were not viewed as being worth public money to educate. This status quo is unacceptable. As a starting point, the IRS should revise Treasury Regulation 1.213-1(e)(1)(v)(a) to unambiguously recognize a broader interpretation of Section 213. This revision would remove a dated regulatory distinction that pushes families towards medical institutions and away from the rest of the world to support their children’s disability-informed education. A more substantial solution would be for Congress to amend Section 529A, the section of the tax code created by the ABLE Act, to remove limits on contributions to ABLE accounts and to make those contributions tax deductible. The result would be that instead of families being forced to try and fit their costs into the arbitrary and antiquated framework of the medical expense deduction to obtain some tax relief, families could funnel all their planned spending to “qualified disability expenses” through an ABLE account and receive deductions on their contributions to the account. However, there are only small solutions to be found for special needs families in the Internal Revenue Code and it requires a broader cultural shift more than new ideas to truly give disabled students and their families access to society and access to justice. The promises to disabled students are already embedded in our law; they merely remain unvindicated

Restoring Chevron Deference by Statute

This paper details a solution for legislatively restoring Chevron deference: amend the APA to direct lower federal courts to give deference to reasonable agency decisions but retain nondeferential judicial review by the U.S. Supreme Court. This solution restores most of the practical benefits of Chevron by giving agencies flexibility to implement congressional policy directives with the expertise they have acquired, by maintaining stability in administrative regulation, and by relieving lower federal courts of the burdens of nondeferential review. And retaining nondeferential judicial review in the Supreme Court will preserve the constitutional role of the judicial branch to say what the law is while supplying a backstop against agency overreach

Fine-Tuning LLMs: Structural Fluency and Augmentation for the Great and Powerful Wizard of AI

The civil legal tradition carries assumptions, biases, and attitudes rooted in racism and ideologies intended to protect the (im)balance of power. This moment in history offers new versions of the same challenges with the integration of artificial intelligence (“AI”) and large language models (“LLMs”) into legal frameworks, and those critiques are being addressed in the legal discourse. Building on these perspectives, this moment also offers civil legal professionals a chance to engage in machine learning frameworks informed by social justice principles and accountable to measures of “equal justice for all.” The perception of fairness in the use of these tools is critical to protecting the integrity of and trust in the civil justice system. Although the features of LLMs may not be able to replace legal analysis just yet, developers anticipate that that is where these tools are headed sooner than one might think. Without intentional approaches to machine learning, LLMs will create a civil legal system twilight zone where machines propose new outcomes based on the ineffective patterns of the past, a never-ending feedback loop that traps litigants and stifles social progress. LLMs, and the AI tools which use them, offer a new reality in which legal analysis is more efficient. But, like a law student almost ready to embark on a legal career, LLMs must be properly trained in this time of early development to correct human error. Legal educators, who are not code or software developers, cannot simply change expensive and vast datasets. However, law professors, well versed in scaffolded learning such as the Socratic method and the nuances of social context, are well-situated for this challenge. In the fight for justice, law professors have relied primarily on cultural competency and racial literacy skills to empower subordinated individuals in their work toward systemic justice, critical lenses which can also prove useful in prompting LLMs. Missing from these competency, policy, and regulatory frameworks is a method for prompting machines in ways that “fine-tune” them for social justice. Prompting to encourage consideration of the macro structures and micro systemic forces at work, the historical legacies of injustice, and modern-day subtleties of patterned structural injustice based on social identity and other factors can improve performance and fairness. This Article, borrowing from medical and social work efforts to improve social determinants of health and outcomes, proposes fine-tuning prompts and prompt augmenting to enhance fluency in structural injustice of LLM outputs